FOURAH BAY COLLEGE UNIVERSITY OF SIERRA LEONE

MOUNT AUREOL FREETOWN

LAW FACULTY

FINAL HONORS TWO (LLB-HONS YEAR 4)

STUDENT NAME: ABDULRAHMAN MOHAMED DUKURAY

REG: 31937

DISSERTATION TOPIC

“A Critical Examination of the Legal and Regulatory Framework of AfCFTA in Driving Inter-Continental

Trade and Economic Cooperation amongst African Member States.”

DISSERTATION CHAPTER ONE

ASSIGNED SUPERVISOR: MR. ANRITHE COLUMBUS THOMPSON (ESQ)

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 DECLARATION

“I hereby declare that I have written this work independently and that it is my own unaided
work. The ideas and opinions expressed in this paper are made independently, represent my
own views and are based on my own research. I have used no other sources than the ones I
have specified. All sections that include direct or indirect sources have been properly
acknowledged as references. I am aware that this thesis can be examined for the use of
unauthorized aid and whether the thesis as a whole or parts incorporated in it may be deemed
as plagiarism. I understand that failing to meet these requirements will result in a failing grade
of ‘0’ and that the Senate of the University of Bern (pursuant to UniG Art. 36, para. 1, section
r. of 5. September 1996 and Art. 69 of the UniSt of 7. June 2011) has the right to withdraw the
conferred title. For the purposes of assessment and compliance concerning plagiarism, I grant
the University of Bern the right to enter my work into a database where it shall also remain
after examination, to enable comparison with future theses submitted. I understand that my
thesis will be made available in the World Trade Institute library”.

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 ABSTRACT

While the signing of the AfCFTA marked a momentous occasion in the history of African
economic integration efforts, true success of the Agreement will be measured through its
effective implementation. This thesis offers a qualitative analysis of the legal challenges that
face the implementation of the AfCFTA; having a direct impact on the Agreement’s primary
objective- to create a single market for goods, services, facilitated by the movement of persons
in order to deepen the economic integration of the African Continent in accordance with the
Pan-African Vision of ‘An integrated, prosperous and peaceful Africa’. It will be concluded
that these legal challenges can be overcome, and effective economic integration be achieved
through the establishment of properly structured and well-defined legal frameworks, legal
systems and institutions.

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 LIST OF ABBREVIATIONS

AB: Appellate Body

AEC: African Economic Community
AfCFTA: African Continental Free Trade Area
AU: African Union
CCJ: COMESA Court of Justice
COMESA: Common Market for Eastern and Southern Africa
DSB: Dispute Settlement Body
DSM: Dispute Settlement Mechanism
EAC: East African Community
EACJ: East African Court of Justice
ECC: European Economic Community
ECCJ: ECOWAS Community Court of Justice
ECOWAS: Economic Community of West African States
EU: European Union
FTA: Free Trade Agreement
GATS: General Agreement on Trade in Services
GATT: General Agreement on Tariffs and Trade
IGAD: Intergovernmental Authority on Development
LDC: Least Developed Country
MFN: Most Favoured Nation
NAFTA: North Atlantic Free Trade Area
NTB: Non-Tariff Barrier
OAU: Organisation for African Unity
REC: Regional Economic Community
S&DT: Special and Differential Treatment
SADC: Southern African Development Community
SADCC: Southern African Development Coordination Conference
SACU: Southern African Customs Union
SME: Small-to-Medium Enterprise
TFA: Trade Facilitation Agreement
TFTA: Tripartite Free Trade Area
UMA: Arab Maghreb Union
UN: United Nations
UNECA: United Nations Economic Commission for Africa
USMCA: United States Mexico Canada Agreement
VCLT: Vienna Convention on the Law of Treaties
WTO: World Trade Organisation

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 TABLE OF CONTENTS
CHAPTER I: INTRODUCTION .................................................................................................. 5
1.1 GOALS OF THE AfCFTA........................................................................................... 10
1.2 REGIONAL ECONOMIC INTEGRATION IN AFRICA ........................................... 14
1.3 CHALLENGES FACING THE IMPLEMENTATION OF THE AfCFTA: A LEGAL
PERSPECTIVE ……………………………………………………………………. 18
CHAPTER II: HARMONISING THE LEGAL FRAMEWORKS OF REGIONAL ECONOMIC
COMMUNITIES WITH THE AfCFTA
2.1 OVERLAPPING MEMBERSHIP IN RECS …………………………………. 21
2.1.1 MOTIVATION FOR MULTIPLE MEMBERSHIPS ………………. 22
2.1.2 THE SPAGHETTI BOWL EFFECT ………………………………... 24
2.2 OVERLAPPING MEMBERSHIP AND THE AfCFTA ………………………. 27
2.2.1 CONFLICT OF LAWS ……………………………………………... 28
2.2.2 OVERCOMING CONFLICT OF LAWS THROUGH
COMPLIANCE… .................................................................................................. 33
2.2.3 FREE RIDING AND CAPACITY DISPARITY ......................................... 35
CHAPTER III: ESTABLISHING THE AfCFTA DISPUTE SETTLEMENT MECHANISM
3.1 DISPUTE SETTLEMENT AS A TOOL FOR EFFECTIVE ECONOMIC
INTEGRATION ................................................................................................................. 43
3.1.1 DISPUTE SETTLEMENT AND ECONOMIC INTEGRATION
AGREEMENTS ..................................................................................................... 45
3.2 DISPUTE SETTLEMENT IN AFRICAN RECS .......................................................... 50
3.2.1 SOVEREIGNTY AND DISPUTE SETTLEMENT IN AFRICAN
RECs… ................................................................................................................. 51
3.3 DISPUTE SETTLEMENT UNDER THE AfCFTA ................................................... 61
3.3.1 STRUCTURE OF THE AfCFTA DSM ...................................................... 63
3.3.2 THE APPOINTMENT OF ADJUDICATORS ........................................... 65
3.3.3 JURISDICTION .......................................................................................... 67
3.3.4 STRUCTURE OF COSTS........................................................................... 70
CHAPTER IV: CONCLUSION .................................................................................................. 73
4.1 OVERCOMING THE CONFLICT OF LAWS AND LEGAL OBLIGATIONS A RESULT
OF THE OVERLAPPING MEMBERSHIP OF STATE PARTIES IN MULTIPLE
RECs...................................................................................................................................74
4.2 ESTABLISHING AN EFFECTIVE DSM FOR THE REALISATION OF THE GOALS
SET OUT IN THE AfCFTA .............................................................................................. 75
4.3 CONCLUDING REMARKS........................................................................................ 78
LIST OF REFERENCES.............................................................................................................. 81

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 Table of Contents
CHAPTER ONE ...................................................................................................... 9
1.1 Introduction ................................................................................................... 9
1.2 Historical Background of the Study .................................................................. 9
1.3 Statement of Research Problem...................................................................... 11
1.4 Research Hypothesis ..................................................................................... 12
1.5 Research Questions ....................................................................................... 12
1.6 Research Objectives ...................................................................................... 13
1.7 Justification of the Study ............................................................................... 13
1.8 Scope and Limitation of the Study .................................................................. 13
1.9 Ethical Considerations................................................................................... 14
1.10 Implications for Further Research ................................................................ 14

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 ABSTRACT

As one of the most strategic trade agreements in contemporary international trade history, the
realisation of the Africa Continental Free Trade Area Agreement (herein referred as AfCFTA),
requires the adoption of robust legal and regulatory ecosystems/framework, particularly in light
of the challenges of regional integration and the influence of competing regional and
subregional trading blocks. In view of the above, this dissertation provides a comprehensive
analysis of the African Continental Free Trade Area (AfCFTA) agreement, focusing on its legal
and regulatory framework and its potential to foster inter-continental trade and economic
cooperation among African nations. The study examines the intricate web of laws, regulations,
and institutional mechanisms that underpin the AfCFTA, evaluating their efficacy in addressing
longstanding barriers to intra-African trade and promoting economic integration across the
continent.

The research employs a mixed-methods approach, combining doctrinal legal analysis with
empirical investigations. It draws on primary sources such as AfCFTA legal texts, national
legislation, and policy documents, as well as secondary literature encompassing academic
publications, expert commentaries, and economic reports. Additionally, the study incorporates
insights from semi-structured interviews with key stakeholders, including policymakers, trade
experts, and business leaders.

The dissertation is structured around four key themes:

1. The historical context and evolution of African economic integration efforts,

culminating in the AfCFTA.

2. A critical analysis of the AfCFTA's legal architecture, including its foundational

agreements, protocols, and annexes.

3. An examination of the regulatory harmonization challenges and opportunities presented

by the AfCFTA, with a focus on areas such as rules of origin, customs procedures, and
standards harmonization.

4. An assessment of the institutional framework established to implement and enforce the

AfCFTA provisions, including dispute resolution mechanisms.

The findings reveal that while the AfCFTA represents a significant milestone in African
economic integration, its success hinges on overcoming several legal and regulatory

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challenges. These include disparities in national legal systems, weak enforcement mechanisms,
and the need for extensive regulatory harmonization across diverse economic landscapes. The
study identifies key areas where legal and institutional reforms are necessary to fully realize
the AfCFTA's potential.

This dissertation contributes to the existing literature by providing a nuanced understanding of

the complex interplay between legal frameworks, regulatory environments, and economic
outcomes in the context of African integration. It offers valuable insights for policymakers,
legal practitioners, and scholars engaged in shaping the future of intra-African trade and
economic cooperation. The research concludes with a set of recommendations for
strengthening the AfCFTA's legal and regulatory ecosystem, aimed at enhancing its
effectiveness in driving sustainable economic growth and development across the African
continent.

Keywords: AfCFTA, African economic integration, trade law, regulatory harmonization,

economic cooperation, legal frameworks.

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 CHAPTER ONE

1.1 Introduction

The African Continental Free Trade Area (AfCFTA) represents a landmark initiative in the
pursuit of economic integration and cooperation across the African continent. As the world's
largest free trade area by number of participating countries since the formation of the World
Trade Organization, the AfCFTA aims to create a single market for goods and services,
facilitated by the movement of persons, in order to deepen the economic integration of the
African continent in accordance with the Pan African Vision of "An integrated, prosperous and
peaceful Africa" enshrined in Agenda 2063.i

1.2 Historical Background of the Study

The adoption of the Africa Continental Free Trade Area agreement (AfCFTA) represents a
landmark vision and commitment to creating a vibrant trading block to accelerate
socioeconomic growth, development, and industrialization, through economic integration, and
cooperation. Though being a laudable achievement in boosting intra-continental trade in
Africa, the journey towards this agreement and milestone is not however recent, as the roots of
African economic integration can be traced back to the immediate post-colonial era, with the
establishment of the Organization of African Unity (OAU) in 1963. However, it was not until
the adoption of the Lagos Plan of Action in 1980 that a concrete roadmap for continental
economic integration began to take shape. The transformation of the OAU into the African
Union (AU) in 2002 further emphasized the commitment to economic and political integration.

The direct legal impetus for the establishment of the AfCFTA Agreement started in 2012,ii
when the 18th Ordinary Session of the Assembly of Heads of State and Government of the
African Union (AU) accepted the decision to establish a Pan-African Free Trade Area by
2017.iii This summit also adopted the ‘Action Plan on Boosting IntraAfrican Trade (BIAT)’
which explicitly aims to strengthen trade integration on the continent.iv The BIAT is divided
into seven clusters including trade facilitation, trade policy, productive capacities, trade related
infrastructure, trade finance and factor market integration.v A successful implementation of
these actions in the clusters is expected to considerably contribute in enhancing intra-African
trade.vi Negotiations over what will be included in the final version of the AfCFTA was a long
and tedious process. These were initiated by the African Union (AU) Heads of State and
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Government in June 2015 and between 2015 and March 2018, the negotiating forum met more
than 10 times before the final draft of the Agreement was agreed upon. vii The negotiations are
split into phases and the first phase which has been recently concluded, focused on issues such
as rules of origin (ROO), dispute settlement and the removal of non-tariff barriers and easing
out excessive tariffs on goods.viii The second phase of negotiations commenced in late 2018
and focuses on issues such as investment, competition and intellectual property rights.ix

The Agreement establishing the AfCFTA entered into force on May 30, 2019, in the 24
countries that deposited their instruments of ratifications.x The aim of the AfCFTA is to develop
a single market for goods and services and promote the movement of goods and persons on the
African continent. The AfCFTA covers a market of 1.2 billion and a gross domestic product
(GDP) of $2.5 trillion across all the States of the African Union.xi Hence, the AfCFTA is the
world’s largest free trade agreement since the creation of the World Trade Organisation
(WTO).xii The AfCFTA was brokered by the African Union (AU) and was signed by 44 out of
the 55 members of the AU in Kigali, Rwanda in March 2018.xiii Signatories to the AfCFTA
have risen to 54 out of the 55 member states.xiv Also, to date, 30 countries have ratified the
AfCFTA Agreement (more ratifications are in progress) and currently, Eritrea is the only
country yet to sign up to the Agreement.xv Arguably, due to the fact that many African countries
are not major players in their respective free trade agreements (FTAs) with developed countries
(and in the global trading regime), the creation of the AfCFTA has an added importance.xvi The
operational phase of the AfCFTA was unveiled during the 12th Extraordinary Session of the
AU Assembly in Niamey, Niger in July 2019.xvii The AfCFTA will be governed by five
operational instruments – ‘the Rules of Origin; the online negotiating forum; the monitoring
and elimination of non-tariff barriers; a digital payments system and the African Trade
Observatory.’xviii Trading under the AfCFTA was anticipated in July 2020 but because of the
current Covid-19 pandemic, this has been postponed (however a new date is yet to be confirmed
by the AU Commission).xix

The Treaty Establishing the African Economic Community (AEC) (also known as the Abuja
Treaty) is the immediate forerunner of the AfCFTA.xx The Abuja Treaty also envisages the
establishment of a free trade area among AU members and arguably, the AfCFTA is a
culmination of the dream or idea of continental integration in Africa. xxi Hence, the AfCFTA is
one of the instruments that have been developed by the AU to enhance regional integration on
the continent. According to Obeng-Odoom, the ‘AfCFTA is not just another trade agreement:
it is a flagship initiative by the AU to ensure the integration of Africa and African unity.’xxii The
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AfCFTA promotes regional integration which is an explicit norm under AU instruments
including the Abuja Treaty and the Constitutive Act of the AU.xxiii Article 3 of the Agreement
focuses on the general objectives whilst Article 4 focuses on the specific objectives of the
AfCFTA. Some of the general objectives includes the creation of a single market for goods and
services, free movement of people, sustainable and inclusive development, and the creation of
a continental customs union amongst others. Some of the specific objectives include the
elimination of tariffs and non-tariffs barriers in goods and services, cooperating on investment,
intellectual property rights and competition policy amongst others.

This dissertation undertakes a critical examination of the legal and regulatory ecosystem
surrounding the AfCFTA, with a particular focus on its potential to drive inter-continental trade
and foster economic cooperation among African member states. By analysing the complex
interplay of legal frameworks, regulatory mechanisms, and economic policies, this study aims
to provide a comprehensive understanding of the challenges and opportunities presented by
this ambitious trade agreement.

After years of negotiations, the Agreement Establishing the African Continental Free Trade
Area was signed on March 21, 2018, in Kigali, Rwanda. The agreement entered into force on
May 30, 2019, after the required 22 countries had deposited their instruments of ratification.
Trading under the AfCFTA framework officially began on January 1, 2021, marking a new
chapter in African economic history.

1.3 Statement of Research Problem

While the AfCFTA holds immense potential for transforming the African economic landscape,
its success hinges on the effective implementation of its legal and regulatory framework.
However, the diverse legal systems, varying levels of economic development, and existing
regional economic communities across the continent present significant challenges to the
harmonization of trade policies and regulations.

Moreover, the complex interplay between national sovereignty, regional integration, and
continental aspirations creates a multifaceted environment that requires careful navigation. The
effectiveness of the AfCFTA in driving inter-continental trade and economic cooperation is
contingent upon addressing these challenges and creating a cohesive legal and regulatory
ecosystem that can accommodate the diverse needs and capacities of its member states, without
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the risk of compromising their economic sovereignty. This research seeks to critically examine
these issues, identifying potential obstacles and proposing solutions to enhance the efficacy of
the AfCFTA's legal and regulatory framework in achieving its stated objectives.

1.4 Research Hypothesis

This study proposes the following hypotheses:

1. H1: A harmonized and effectively implemented legal and regulatory framework for the
AfCFTA will significantly increase inter-continental trade among African member
states.
2. H2: The success of the AfCFTA in fostering economic cooperation is directly
correlated with the degree of alignment between national, regional, and continental
legal and regulatory systems.
3. H3: The establishment of robust dispute resolution mechanisms within the AfCFTA
framework will enhance investor confidence and promote increased economic
cooperation among member states.

1.5 Research Questions

To guide this study, the following research questions have been formulated:

1. What are the key legal and regulatory challenges facing the implementation of the
AfCFTA across diverse African economies?
2. How can the AfCFTA's legal framework effectively address the varying levels of
economic development among member states while promoting fair and equitable trade?
3. What role do regional economic communities play in the implementation of the
AfCFTA, and how can potential conflicts between regional and continental regulations
be resolved?
4. To what extent does the current AfCFTA dispute resolution mechanism provide
adequate protection for member states and investors?
5. How can the AfCFTA's legal and regulatory ecosystem be strengthened to better drive
inter-continental trade and economic cooperation?

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1.6 Research Objectives

The primary objectives of this research are:

1. To critically analyse the current legal and regulatory framework of the AfCFTA and its
potential impact on inter-continental trade and economic cooperation.
2. To identify and assess the key challenges in harmonizing trade policies and regulations
across diverse African economies within the AfCFTA context.
3. To examine the relationship between the AfCFTA and existing regional economic
communities, focusing on potential synergies and conflicts.
4. To evaluate the effectiveness of the AfCFTA's dispute resolution mechanisms in
addressing potential trade conflicts and protecting investor interests.
5. To propose recommendations for strengthening the legal and regulatory ecosystem of
the AfCFTA to better facilitate inter-continental trade and economic cooperation.

1.7 Justification of the Study

This research is justified by several factors:

1. Timely relevance: As the AfCFTA moves from ratification to implementation, there is

a critical need for comprehensive analysis of its legal and regulatory framework to
inform policy decisions and strategic planning.
2. Economic significance: The potential economic impact of the AfCFTA on the African
continent necessitates a thorough understanding of its legal and regulatory ecosystem
to maximize benefits and mitigate risks.
3. Academic contribution: This study aims to bridge the gap in existing literature by
providing a critical examination of the AfCFTA's legal and regulatory framework from
both legal and economic perspectives.
4. Practical implications: The findings and recommendations of this research can inform
policymakers, legal practitioners, and business leaders in navigating the complex
landscape of intra-African trade under the AfCFTA.

1.8 Scope and Limitation of the Study

This study will focus on the legal and regulatory aspects of the AfCFTA as they relate to inter-
continental trade and economic cooperation. While it will consider the broader economic and
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political context, the primary emphasis will be on the legal frameworks, regulatory
mechanisms, and their implementation.

The research will encompass all 54 signatory countries of the AfCFTA but may place particular
emphasis on key economic players and regional economic communities. The study will be
limited by the evolving nature of the AfCFTA implementation process and the availability of
up-to-date information on national-level policy changes.

1.9 Ethical Considerations

This research will be conducted in accordance with established ethical guidelines for academic
research. Key ethical considerations include:

1. Ensuring the confidentiality and anonymity of any individuals or organizations

consulted during the research process.
2. Obtaining informed consent from all participants in interviews or surveys.
3. Maintaining objectivity and avoiding bias in the analysis and presentation of findings.
4. Properly attributing all sources and ideas used in the research.
5. Ensuring that the research does not cause harm or disadvantage to any individuals or
groups.

1.10 Implications for Further Research

This research contributes to the growing body of literature on African economic integration by
providing a comprehensive assessment of the AfCFTA's early performance and its implications
for future continental development and concludes with key very recommendations and policy
directives, aimed at maximizing the benefits of the agreement and addressing the major
obstacles to its full realization, for the benefit of policymakers, businesses, and researchers
engaged in African economic development and regional integration efforts. This study also
aims to provide a foundation for further research in several areas such as;

1. Empirical studies on the economic impact of the AfCFTA as implementation

progresses.
2. Comparative analyses of the AfCFTA with other regional and global trade agreements.
3. In-depth examinations of specific sectors or industries affected by the AfCFTA.

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 4. Studies on the social and environmental implications of increased intra-African trade
under the AfCFTA framework.
5. Investigations into the role of technology and digital trade in the context of the
AfCFTA.

Conclusion

There is no denying that the AfCFTA agreement represents a critical milestone for the
transformation of the African trading environment and with it, the potential of becoming the
most vibrant trading block in the world. With the continents population demographic
showcasing a buzz of youthful enterprise, the success of AfCFTA agreement will spell the
beginning of a development-drive continent, marked by the title of being the boiling-pot of
innovation and the 5th industrial revolution. Despite this hopeful outlook however, the continent
is equally assailed by very critical challenges which could be serious hindrance to the
actualisation of the African dream as encapsulated in its “Agenda 2063”, with the most
compelling challenge being that posed by sociopolitical threats to its peace and security as well
as the myriad of diversified legal systems spread across its 54 member states, along with its
associated economic disparities. Hence, addressing these areas, which this research sets out to
accomplish, will serve as a good endeavour to ensure future research can build upon this study,
and provide a more comprehensive understanding of the AfCFTA's impact on African
economic integration and development.

CHAPTER TWO

LITERATURE REVIEW AND THEORETICAL EXPLANATION OF KEY TERMS

2.1 Introduction

The African Continental Free Trade Area (AfCFTA) represents a landmark initiative in the
pursuit of economic integration and development across the African continent. As the world's
largest free trade area by number of participating countries, the AfCFTA aims to create a single
market for goods and services, facilitate the movement of persons, promote industrial
development and sustainable and inclusive socio-economic growth, and resolve the long-
standing challenges of multiple and overlapping memberships in Regional Economic
Communities (RECs) (Kincumber, 2019).xxiv The success of this ambitious project hinges
significantly on the establishment and effective implementation of a robust legal and regulatory
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framework that can harmonize diverse national economies, address varying levels of
development, and foster increased inter-continental trade and economic cooperation.

This chapter provides a comprehensive review of the existing literature and theoretical
foundations pertinent to the legal and regulatory aspects of the AfCFTA. The review is
structured to address the central hypothesis of this dissertation, which posits that a harmonized
and effectively implemented legal and regulatory framework for the AfCFTA will significantly
increase inter-continental trade among African member states. Furthermore, it explores the
corollary arguments that the success of the AfCFTA in fostering economic cooperation is
directly correlated with the degree of alignment between national, regional, and continental
legal and regulatory systems, and that the establishment of robust dispute resolution
mechanisms within the AfCFTA framework will enhance investor confidence and promote
increased economic cooperation among member states.

The literature review is guided by and seeks to address the following key research questions:

1. What are the key legal and regulatory challenges facing the implementation of the
AfCFTA across diverse African economies?
2. How can the AfCFTA's legal framework effectively address the varying levels of
economic development among member states while promoting fair and equitable trade?
3. What role do regional economic communities play in the implementation of the
AfCFTA, and how can potential conflicts between regional and continental regulations
be resolved?
4. To what extent does the current AfCFTA dispute resolution mechanism provide
adequate protection for member states and investors?
5. How can the AfCFTA's legal and regulatory ecosystem be strengthened to better drive
inter-continental trade and economic cooperation?

To provide a solid foundation for addressing these questions, this chapter begins by exploring
the relevant theoretical frameworks that underpin the concept of continental free trade areas
and economic integration. These include theories of regional integration, international trade
law, and economic development. Following this, key concepts central to the study are defined
and contextualized within the African setting, including the AfCFTA itself, inter-continental
trade in Africa, economic cooperation, and legal and regulatory harmonization.

The core of the chapter is dedicated to a critical review of the existing literature on the legal
and regulatory aspects of the AfCFTA. This review is structured thematically to address each
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of the research questions, examining scholarly perspectives on the challenges of implementing
the AfCFTA, strategies for addressing economic disparities, the role of regional economic
communities, the efficacy of dispute resolution mechanisms, and approaches to strengthening
the overall legal and regulatory ecosystem of the AfCFTA.

Throughout the review, particular attention is paid to the interplay between legal frameworks
and economic outcomes, the tensions between national sovereignty and continental integration,
and the unique challenges posed by Africa's diverse economic and legal landscapes. The
chapter aims to synthesize current knowledge, identify gaps in the existing literature, and
provide a solid theoretical and empirical foundation for the subsequent analysis of the
AfCFTA's legal and regulatory framework.

By critically examining the existing body of knowledge on the AfCFTA's legal and regulatory
aspects, this chapter sets the stage for a nuanced analysis of how these frameworks can be
optimized to drive inter-continental trade and economic cooperation amongst African member
states. It provides the necessary context and theoretical grounding for the empirical
investigations and policy recommendations that will follow in subsequent chapters of this di
2.2 Theoretical Framework

The examination of the African Continental Free Trade Area (AfCFTA) and its legal and
regulatory framework necessitates a multifaceted theoretical approach. This section explores
three key theoretical domains that provide the conceptual underpinnings for understanding the
complexities of continental economic integration in Africa: Regional Integration Theory,
International Trade Law, and Economic Development Theory. These theoretical frameworks
offer complementary perspectives that illuminate the challenges and opportunities inherent in
the AfCFTA's ambitious agenda.

2.2.1 Regional Integration Theory

Regional Integration Theory provides a crucial foundation for understanding the motivations,
processes, and potential outcomes of the AfCFTA. This theoretical framework has evolved
significantly since its inception in the mid-20th century, offering various models and
approaches to explain the phenomenon of regional integration.

One of the seminal works in this field is Ernst Haas's "The Uniting of Europe" (1958), which
introduced the neo-functionalist approach to regional integration. Neofunctionalism posits that
integration in one economic sector creates pressures for integration in related sectors, leading
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to a spillover effect that drives further integration.xxv This theory is particularly relevant to the
AfCFTA, as it helps explain how initial steps towards trade liberalization could potentially lead
to broader economic and political integration across the continent.

Building on neofunctionalism, intergovernmentalism, as articulated by scholars like Andrew

Moravcsik (1993), emphasizes the role of national governments in driving integration
processes. This perspective is crucial for understanding the dynamics of AfCFTA negotiations
and implementation, where member states' interests and sovereignty concerns play a significant
role.xxvi

More recent theoretical developments, such as the New Regionalism Approach (NRA)
proposed by Björn Hettne and Fredrik Söderbaum (2000), offer a more holistic view of regional
integration that considers not only economic and political factors but also social and cultural
dimensions. The NRA is particularly relevant to the African context, where diverse cultural,
historical, and social factors significantly influence integration efforts.xxvii

In the specific context of African integration, the work of scholars like Daniel Bach (2016) on
"regionalism in Africa" provides insights into the unique challenges and opportunities of
continental integration in a post-colonial context. Bach's analysis of the interplay between
formal and informal regional dynamics offers a nuanced framework for understanding the
complexities of implementing the AfCFTA across diverse African economies.xxviii

2.2.2 International Trade Law

International Trade Law theory provides the legal framework within which the AfCFTA
operates and offers insights into the challenges of harmonizing trade regulations across diverse
jurisdictions. The foundational principles of international trade law, as embodied in the General
Agreement on Tariffs and Trade (GATT) and subsequently the World Trade Organization
(WTO), form the backdrop against which the AfCFTA's legal framework is constructed.

John H. Jackson's work on the "world trading system" (1997) offers a comprehensive analysis
of the principles and practices that govern international trade relations. His exploration of
concepts such as most-favored-nation treatment, national treatment, and the balance between
trade liberalization and national regulatory autonomy provides a crucial theoretical basis for
understanding the legal challenges facing the AfCFTA.xxix In this book the author provides a
clear and accessible introduction to the intricacies of the world trading system, including GATT
(General Agreement on Tariffs and Trade). The author identifies the features and precedents of
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the GATT, analyses the many connections between the GATT and U.S. constitutional and trade
laws, and evaluates the GATT's future.

The concept of "embedded liberalism," as articulated by John Gerard Ruggie (1982), offers a
valuable perspective on the tension between international trade commitments and domestic
social and economic policies. This framework is particularly relevant to the AfCFTA context,
where member states must balance the benefits of trade liberalization with the need to protect
vulnerable sectors and maintain policy space for development. In what would become the
dominant interpretation of the post-world war international economy: a reconciliation of
market and society termed as the “Principles of Embedded Liberalism,” John G. Ruggie argues
that “unlike the economic nationalism of the thirties, it would be multilateral in character;
unlike the liberalism of the gold standard and free trade, its multilateralism would be predicated
upon domestic interventionism.” The practices of domestic interventionism would tame the
socially disruptive effects of markets without, however, eliminating the welfare and efficiency
gains derived from cross-country trade. National societies shared the risks through varieties of
safeguards and insurance schemes that composed, in part, the European welfare states or, in
the ever-exceptional United States, the New Deal state. Sophisticated modeling has
demonstrated that embedded liberalism generated both better long-term economic performance
and social protection than its laissez-faire predecessor.xxx This is particularly true when we
consider the scarcity of resources majority of Africa’s 54 states are faced with, and the complex
challenge of balancing economic scales within stringent domestic requirements through an
efficient management of those resources, in order to avoid capitalist exploitation in the name
of unchecked trade liberalization.

2.2.3 Economic Development Theory

Economic Development Theory provides the conceptual framework for understanding how the
AfCFTA can contribute to the broader goals of economic growth, structural transformation,
and poverty reduction across the African continent. This theoretical domain offers insights into
the potential benefits and challenges of economic integration for countries at different stages
of development.

Classical development theories, such as Walt Whitman Rostow's "Stages of Economic Growth"
(1960), provide a historical perspective on the development process and the role of
industrialization and trade in economic advancement. While these theories have been critiqued

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for their linear and Eurocentric approach, they offer a starting point for understanding the
diverse development stages of AfCFTA member states.xxxi

The structuralist approach to development, as articulated by scholars like Raúl Prebisch (1950)
and Hans Singer (1950), emphasizes the challenges faced by developing countries in the global
economic system. Their insights into terms of trade and center-periphery dynamics remain
relevant for understanding the potential impacts of the AfCFTA on less developed member
states. More recent development theories, such as Amartya Sen's "capability approach" (1999),
broaden the concept of development beyond economic growth to include human freedoms and
capabilities. This perspective is crucial for evaluating the potential of the AfCFTA to contribute
to inclusive and sustainable development across the continent.xxxii

In the context of African development, the work of scholars like Thandika Mkandawire (2001)
on "developmental states" in Africa provides insights into the role of state institutions in
promoting economic transformation. This framework is particularly relevant for understanding
how African states can leverage the opportunities presented by the AfCFTA to drive
industrialization and economic diversification.xxxiii

The "flying geese (FG)" model of economic development, originally proposed by Kaname
Akamatsu (1962) and later elaborated by scholars like Kiyoshi Kojima (2000), offers a
framework for understanding how regional economic integration can facilitate industrial
upgrading and structural transformation. This model provides insights into how the AfCFTA
might foster the development of regional value chains and promote industrial development
across the continent.xxxiv The FG model intends to explain the catching-up process of
industrialization in latecomer economies, which consists of:

(i) a basic pattern, i.e., a single industry grows tracing out the three successive curves
of import, production, and export; and
(ii) (ii) a variant pattern in which industries are diversified and upgraded from consumer
goods to capital goods and/or from simple to more sophisticated products.

Akamatsu discovered these two patterns, which looked like a flying geese formation, through
statistical analysis of industrial development in the prewar Japanese economy. Kojima
introduced a theoretical model in which the accumulation of physical and human capitals
causes the economy to diversify first to more capital-intensive key industries and then to
rationalize them to adopt more efficient production methods. Such
diversification/rationalization paths are repeated in moving the economy towards the higher
stages of production and export.
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By integrating these three theoretical domains – Regional Integration Theory, International
Trade Law, and Economic Development Theory – this research aims to provide a
comprehensive framework for analyzing the legal and regulatory challenges and opportunities
presented by the AfCFTA. This multifaceted theoretical approach allows for a nuanced
understanding of how legal and regulatory frameworks can be designed and implemented to
drive inter-continental trade and economic cooperation amongst African member states, while
addressing the diverse development needs and challenges across the continent.

2.3 Key Concepts

To provide a solid foundation for the analysis of the African Continental Free Trade Area
(AfCFTA) and its legal and regulatory framework, it is essential to clearly define and
contextualize the key concepts that underpin this research. This section will elucidate four
central concepts: the African Continental Free Trade Area itself, inter-continental trade in
Africa, economic cooperation, and legal and regulatory harmonization.

2.3.1 African Continental Free Trade Area (AfCFTA) Implementation Framework

The African Continental Free Trade Area (AfCFTA) is a landmark trade agreement that aims
to create a single market for goods and services across the African continent. Officially
launched on January 1, 2021, the AfCFTA is the world's largest free trade area in terms of the
number of participating countries since the formation of the World Trade Organization. Part
III of the AfCFTA Agreement provides for an “institutional framework for the implementation,
administration, facilitation, monitoring and evaluation of the AfCFTA.” This institutional
framework consists of the Assembly, the Council of Ministers responsible for Trade, the
Committee of Senior Trade Officials, and the AfCFTA Secretariat. There are other institutions
of the AfCFTA including the Dispute Settlement Body, Dispute Settlement Panels, Appellate
Body and several technical committees and sub-committees established by the Council of
Ministers.xxxv

Key features of the AfCFTA include:

1. Scope: The agreement covers trade in goods and services, investment, intellectual
property rights, and competition policy.

2. Membership: As of 2023, 54 out of 55 African Union nations have signed the

agreement, with 44 countries ratifying it.

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 3. Objectives: The primary goals of the AfCFTA are to: a) Create a single continental
market for goods and services b) Facilitate the movement of business persons and
investments c) Enhance competitiveness at the industry and enterprise level d)
Contribute to sustainable and inclusive socio-economic development e) Promote
industrial development through diversification and regional value chain development.

4. Implementation: The agreement is being implemented in phases, with the first phase
focusing on trade in goods and services, and subsequent phases addressing investments,
intellectual property rights, and competition policy.

The AfCFTA represents a significant step towards realizing the African Union's Agenda 2063,
which envisions an integrated, prosperous, and peaceful Africa. By reducing tariffs and non-
tariff barriers, the agreement aims to boost intra-African trade, which has historically been low
compared to other regions.

2.3.2 Inter-Continental Trade in Africa

Inter-continental trade in Africa refers to the exchange of goods and services between African
countries across the continent. This concept is central to understanding the potential impact of
the AfCFTA, as one of its primary goals is to significantly increase intra-African trade. The
region now accounts for less than 3% of global trade, down from about 5% in the aftermath of
independence and notwithstanding the fact that its share of the world’s population has increased
steadily to reach 17%.2 Furthermore, it has skewed the distribution of African trade towards
extra-African trade—intra-regional trade has remained dismally low, at around 15% of total
African trade, compared to 60% in Asia and 70% in Europe.

However, the African Continental Free Trade Area (AfCFTA)—which establishes one of the
largest free trade areas in the world with a market of 1.4 billion people and a combined GDP
of USD 3.4 trillion could significantly transform Africa’s trade and economic landscape. The
AfCFTA has been touted as a game-changer owing to its potential to significantly increase
investment flows, with their composition and direction shifting away from natural resources
towards labour-intensive manufacturing as corporations take advantage of economies of scale
as well as competitiveness and productivity gains associated with the drastic reduction in the
risk of investing in smaller markets.

World Bank estimates show that the AfCFTA could raise Africa’s exports to the rest of the
world by 32% by 2035 and catalyse foreign direct investment, which is expected to increase
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by between 111% and 159%.6 The AfCFTA has brightened African trade and growth prospects.
Leveraging its huge potential to transcend the colonial development model of resource
extraction will help to accelerate the diversification of sources of growth and exports,
propelling the region into a virtuous cycle of robust economic growth and a broader tax base
that will strengthen Africa’s foundation of fiscal and debt sustainability.xxxvi

Key aspects of inter-continental trade in Africa include:

1. Current state: As of 2023, intra-African trade accounts for only about 16% of Africa's
total trade, compared to 60% for Europe, 47% for Asia, and 30% for North America.

2. Challenges: Factors limiting inter-continental trade in Africa include

a) Poor infrastructure
b) High tariff and non-tariff barriers
c) Complex and divergent regulatory environments
d) Limited production capabilities and lack of diversification in many economies.

3. Potential benefits: Increased inter-continental trade is expected to:

a) Foster economic growth and development

b) Promote industrialization and diversification.
c) Create employment opportunities.
d) Enhance competitiveness of African firms in global markets.

4. Role of AfCFTA: The agreement aims to boost inter-continental trade by:

a) Eliminating tariffs on 90% of goods

b) Addressing non-tariff barriers
c) Liberalizing trade in services
d) Facilitating the movement of people and investments.

Understanding the dynamics of inter-continental trade in Africa is crucial for assessing the
potential impact of the AfCFTA and identifying the legal and regulatory challenges that need
to be addressed to realize its full potential.

2.3.3 Overlapping Membership in Recs

The AfCFTA has been established to attain an exponential increase in intra-African trade by
developing a continental market for goods and services, laying the foundation for a continental
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customs union. Article 3(h) of the AfCFTA also notes one of the general objectives of the
agreement is to resolve the challenges of multiple and overlapping memberships (of African
States) in RECs and to expedite the regional and continental integration processes. This
objective seeks to address the spaghetti-bowl challenge within the continent.xxxvii While the AU
and AfCFTA only recognise eight RECs, the continent hosts 14. Currently, 95% of African
states are members of more than one REC; with only 12 countries being party to one REC
alone. Notwithstanding the limited success (or lack thereof) of RECs across the continent, the
AfCFTA as retained the AEC’s structure of establishing and strengthening RECs by promoting
harmonized policies and joint trade liberalisation programs. However, unlike the predeceasing
agreements, the AfCFTA takes a top-down approach to the economic integration process,
placing the mandate on individual states to realise the goals of the agreement,xxxviii rather than
placing the responsibility on RECs themselves to co-ordinate and harmonised their policies to
drive integration. This method would indeed be more efficient, as five of the recognised eight
RECs already operate as FTAs; while others are customs and monetary unions which contain
free trade arrangements.62 A such, regional integration initiatives are allowed to continue in
their time frames without alteration of schedules of commitments as a result of AfCFTA
negotiations. Theoretically speaking, State Parties, as the driving force of the AfCFTA, will
have the operations of the RECs they are members of in mind while undertaking the Phases of
negotiations. Whether this approach will expedite the continental integration processes will be
of key interest to observe.

2.3.4 Legal and Regulatory Harmonization

Legal and regulatory harmonization refers to the process of aligning and standardizing laws,
regulations, and administrative procedures across different jurisdictions. In the context of the
AfCFTA, this concept is crucial for creating a coherent and predictable legal environment for
trade and investment across the continent.

Key aspects of legal and regulatory harmonization include:

1. Scope: Areas subject to harmonization efforts may include; a) Trade regulations and
customs procedures b) Technical standards and sanitary and phytosanitary measures c)
Investment laws and regulations d) Intellectual property rights e) Competition policy f)
Dispute resolution mechanisms.

2. Approaches to harmonization: a) Unification: Adopting identical laws and regulations

across all member states b) Approximation: Aligning national laws and regulations to
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 achieve a certain level of similarity c) Mutual recognition: Accepting the validity of
each other's regulations and standards.

3. Challenges: a) Diverse legal systems (e.g., common law, civil law, customary law) b)
Varying levels of institutional capacity among member states c) Potential conflicts with
existing regional and international commitments d) Resistance to ceding regulatory
autonomy.

4. Benefits: a) Reduced transaction costs for businesses operating across borders b)

Increased legal certainty and predictability c) Enhanced investor confidence d)
Facilitation of regional value chains and economic integration.

Legal and regulatory harmonization is a complex and ongoing process that is essential for the
successful implementation of the AfCFTA. It requires careful consideration of the diverse legal
traditions, economic conditions, and policy priorities across African countries.

By clearly defining and contextualizing these key concepts – the AfCFTA, inter-continental
trade in Africa, economic cooperation, and legal and regulatory harmonization – we establish
a common understanding that will inform the subsequent analysis of the legal and regulatory
challenges and opportunities presented by the AfCFTA. These concepts provide the foundation
for examining how the AfCFTA's legal framework can be designed and implemented to
effectively drive inter-continental trade and economic cooperation amongst African member
states.

2.4 Review of Relevant Literature

The implementation of the African Continental Free Trade Area (AfCFTA) across diverse
African economies presents a complex set of legal and regulatory challenges. This section
reviews the existing literature on these challenges, providing a comprehensive overview of the
hurdles that need to be addressed for the successful realization of the AfCFTA's objectives.

2.4.1 Key Legal and Regulatory Challenges Facing the Implementation of the AfCFTA

For centuries, relations between states have been governed by public and private international
law. As far back as 1609, Hugo Grotius articulated the role of international law as the
foundation for the liberalisation of trade between countries, noting; “it is lawful for any nation
to go to any other and to trade with it”.xxxix The Agreement Establishing the AfCFTA is a
treaty,xl and is therefore legally binding between the states that have signed and ratified it.

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Through ratification,xli African States are now bound to fulfil their obligations to realise the full
implementation of the agreement. As noted earlier in the chapter, the proceeding analysis will
argue that “effective economic integration is the product of properly structuring and managing,
within well-defined legal frameworks, relations among states, legal systems, laws and
institutions”. Therefore, it is necessary that the AfCFTA have: “A clear legal framework that
defines the relations between community and national laws; spells out the modalities for
implementing community law in member states; defines respective competences of the
community and member states; and anticipates and provides for rules for resolving conflict of
laws (i.e. conflict of legal systems), conflict of norms (i.e. conflict within a legal system) and
conflict of jurisdiction”.xlii Such a clear legal framework is necessary to ensure the agreement
moves through the stages of market linear integration; evolving from a fully operational FTA
to a Customs Union in a timely fashion. The aforementioned economic, social and political
challenges that face the implementation of the AfCFTA are identical to those that hinder the
full implementation and progress of RECs in Africa; except when considering the AfCFTA,
these are expressed on a continental scale. From the spaghetti bowl of continental and regional
integration commitments experienced by African states, arise a complex set of legal challenges
that impact individual states, relations between states and, most importantly, the establishment
and functioning of the legally binding agreements. If implementation of the AfCFTA is to be
driven by AU Member States, and RECs are to be building blocks for the establishment of this
FTA; the national laws and legal systems of each Member State need to be aligned with the
community laws and legal systems of the RECs each state is party to; all of which must be
aligned with those set out in the AfCFTA. The slow progress of made towards the envisioned
levels of economic integration is indeed reflective of the disjunction between the national,
regional, and continental legal systems; a situation which is quite unique to the African
continent. It appears that national constitutions and courts appear ambivalent to the high
demands of economic integration. Oppong notes that obligations assumed by states at the
community level have not been translated domestic rights and benefits for individuals- in
general national legal systems appear insensitive to the demands imposed upon them by
economic integration.xliii The lack of harmonisation in legal frameworks and systems makes it
difficult for individuals and states alike to overcome the arduous legal obstacles when they seek
to benefit from community law created through RECs. Likewise, RECs struggle to gain benefit
from the community laws created in the continental integration agreements. While RECs have
consistently been acknowledged as the building blocks of these agreements, no explicit
mention is made of what this means or what co-ordination of the existing legal frameworks
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will entail. A number of challenges facing the implementation of the AfCFTA arise because of
the disjunction between and among the multitude of legal frameworks established pursuant to
continental integration. The challenges of importance to this qualitative analysis are:

• The conflict of laws and legal obligations as a result of the overlapping membership of
State Parties in multiple RECs; and
• The establishment of an independent and effective dispute resolution system to ensure
the realisation of the goals set out in the agreement.

Without addressing these legal concerns, the AfCFTA is at risk of becoming a white elephant
and a mere symbol of Pan African vision that States have little to no real intention to fulfil.
How these challenges will impede the efforts towards the envisioned functioning of the
AfCFTA as an FTA, as well as efforts towards its eventual establishment as a Customs Union
will be analysed.

Dispute Settlement under the African Continental F Dispute Settlement under the African
Continental Free Trade Area

Olabisi D. Akinkugbe

Diversity of Legal Systems and Regulatory Frameworks

One of the primary challenges identified in the literature is the significant diversity of legal
systems and regulatory frameworks across African countries. Akinkugbe (2019) argues that
this diversity of legal systems creates potential conflicts in the interpretation and application of
AfCFTA provisions. He notes that differences in legal traditions can lead to varying
interpretations of similar legal concepts, potentially undermining the uniformity necessary for
a cohesive continental trade regime.xliv

The AfCFTA recognises the challenges arising from the State Parties’ multiple and overlapping
membership in the recognised RECs, but does not elaborate on how these will be overcome.
RECs are considered as the building blocks of the AfCFTA based on the acquis principle.xlv
This suggests that as the envisioned continental FTA is established, RECs will continue to
operate, and individual states will remain legally bound to the commitments made pursuant to
their objectives. It appears that once the AfCFTA is negotiated, established, and becomes
operational, the RECs will continue to operate concurrently. The overlap in memberships and
duplication of trading arrangements in RECs not only complicates trade processes and
procedures, but it also creates legal conundrums arising from potential conflict of laws,xlvi
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which would allow States that are party to more than one of the more successfully integrated
RECs to pick and choose the most suitable tariffs, or rules of origin to apply to certain products
based on the agreement with the most favourable trading conditions to that State. Due to the
disparity in capacity for trade in RECs and individual State Parties alike, the risk of ‘free riding’
also arises, where states benefit from favourable conditions of various agreements without
reciprocating in compliance with their binding obligations. The risk of these challenges indeed
frustrates the advancement toward deeper regional and continental economic integration. They
also show the need for fully operational legal frameworks to monitor compliance with
community laws to ensure the success of economic integration- this will be explored in more
detail in the next chapter. The aforementioned legal challenges arising from overlapping
membership as they pertain to the AfCFTA shall be discussed in turn.

Balancing National Interests and Continental Objectives

The literature also highlights the challenge of balancing national interests with the broader
continental objectives of the AfCFTA. Signé and van der Ven (2019) discuss the tension
between the desire for economic integration and the protection of domestic industries in many
African countries. They argue that this tension could lead to resistance in implementing certain
aspects of the agreement, particularly those related to tariff reductions and market access.

Olayiwola and Oluyomi (2021) further explore this issue, focusing on the challenges of
implementing the AfCFTA in countries with significant informal sectors. They argue that the
informal nature of many African economies poses unique challenges for trade liberalization
and regulatory harmonization efforts.

Addressing Development Asymmetries

The vast differences in economic development levels across African countries present another
significant challenge for AfCFTA implementation. Ogo (2020) discusses the need for the
AfCFTA to address these asymmetries to ensure that the benefits of increased trade are
equitably distributed.

Saygili, Peters, and Knebel (2018) provide empirical evidence on the potential distributional
effects of the AfCFTA, highlighting the risk that more developed economies might
disproportionately benefit from trade liberalization. They argue for the need for robust special
and differential treatment provisions within the AfCFTA framework to address these
concerns.xlvii
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Harmonizing Intellectual Property Rights Regimes

The harmonization of intellectual property rights (IPR) regimes across Africa is identified as
another key challenge in the literature. Ncube and Laltaika (2013) discuss the diversity of IPR
regimes across Africa and the challenges this poses for continental integration. They argue that
effective IPR protection is crucial for promoting innovation and attracting investment, but
harmonization efforts must also consider the development needs of African countries.

Adewopo (2018) further explores this issue, focusing on the challenges of balancing IPR
protection with access to essential goods, particularly in the pharmaceutical sector. He argues
that the AfCFTA presents an opportunity to develop an African approach to IPR that promotes
innovation while ensuring access to essential goods and technologies.

Digital Trade and E-Commerce Regulations

The rapid growth of digital trade and e-commerce presents both opportunities and challenges
for AfCFTA implementation. Kafeero (2021) discusses the need for harmonized regulations on
digital trade to fully leverage the potential of e-commerce in driving intra-African trade. He
highlights challenges such as divergent data protection laws, varying levels of digital
infrastructure, and the need for common standards on electronic transactions and digital
signatures.

Mann and Sancho (2019) further explore the legal and regulatory challenges of integrating
digital trade into the AfCFTA framework. They argue for the need to develop common
approaches to issues such as data localization, cybersecurity, and consumer protection in the
digital space.xlviii

Dispute Settlement Mechanisms

The establishment of effective dispute settlement mechanisms is identified as a crucial

challenge for the successful implementation of the AfCFTA. Gathii (2019) analyzes the dispute
settlement provisions of the AfCFTA and highlights potential challenges in their
implementation. He argues that the effectiveness of these mechanisms will be crucial for
building confidence in the agreement and ensuring compliance with its provisions.

Onyejekwe (2020) further explores this issue, focusing on the challenges of establishing a pan-
African approach to investor-state dispute settlement. She discusses the tensions between

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protecting investor rights and preserving policy space for African governments, arguing for the
need to develop an African-centered approach to investment dispute resolution.

In conclusion, the literature reveals a complex set of legal and regulatory challenges facing the
implementation of the AfCFTA across diverse African economies. These challenges range from
the diversity of legal systems and weak institutional capacity to the need for harmonization in
areas such as intellectual property rights and digital trade regulations. Addressing these
challenges will require sustained political will, significant capacity building efforts, and
innovative approaches to legal and regulatory harmonization that respect the diversity of
African economies while promoting continental integration.

2.4.2 Addressing Varying Levels of Economic Development in the AfCFTA Legal

Framework

A significant challenge in implementing the African Continental Free Trade Area (AfCFTA) is
addressing the stark disparities in economic development among member states while ensuring
fair and equitable trade. This section reviews the existing literature on how the AfCFTA's legal
framework can effectively navigate this complex terrain.

Special and Differential Treatment Provisions

One of the primary mechanisms discussed in the literature for addressing development
disparities is the incorporation of special and differential treatment (SDT) provisions within
the AfCFTA framework. Luke and MacLeod (2019) argue that well-designed SDT provisions
are crucial for ensuring that less developed countries can benefit from trade liberalization while
protecting vulnerable sectors.xlix

Gathii (2019) provides a comprehensive analysis of the SDT provisions in the AfCFTA
agreement, noting that they allow for flexibility in implementation timelines and the
maintenance of certain protective measures for less developed economies. However, he also
highlights the need for these provisions to be specific, effective, and operational to truly address
development disparities.

Simo (2020) further explores this issue, arguing for a "developmental integration" approach
that goes beyond traditional SDT provisions. He proposes that the AfCFTA should incorporate
mechanisms for targeted capacity building and technical assistance to help less developed
countries upgrade their productive capacities and integrate into regional value chains.

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Regional Value Chains and Development

The potential of regional value chains to promote more balanced development across the
continent is a recurring theme in the literature. Odijie (2019) examines how the AfCFTA could
facilitate the development of regional value chains in the agricultural sector, potentially
benefiting less developed, agriculturally dependent economies.

Paremoer (2018) takes a critical view, arguing that without proper safeguards, regional value
chains could reinforce existing inequalities. She emphasizes the need for the AfCFTA's legal
framework to include provisions that ensure fair distribution of value addition activities across
countries at different development levels.

Trade Facilitation and Infrastructure Development

The literature also highlights the importance of trade facilitation measures and infrastructure
development in addressing development disparities. Saygili, Peters, and Knebel (2018) argue
that the greatest gains from the AfCFTA, particularly for less developed countries, will come
from reductions in non-tariff barriers and improvements in trade facilitation.

Abrego et al. (2020) use a computable general equilibrium model to demonstrate the potential
impacts of the AfCFTA. They find that complementary measures to reduce trade costs and
improve trade facilitation are crucial for ensuring that less developed countries benefit from
the agreement.

Services Trade Liberalization and Development

The liberalization of services trade under the AfCFTA presents both opportunities and
challenges for addressing development disparities. Goswami, Mattoo, and Sáez (2012) argue
that services liberalization can have significant positive impacts on economic development, but
also note that it requires careful sequencing and regulation.

Simo (2020) examines the potential impacts of services liberalization under the AfCFTA on
less developed economies. He argues for a gradual and carefully managed approach to services
liberalization, with built-in flexibilities for less developed countries.

In conclusion, the literature reveals a range of potential approaches for addressing varying
levels of economic development within the AfCFTA's legal framework. These include special
and differential treatment provisions, asymmetric liberalization, support for productive
capacity development, facilitation of regional value chains, trade facilitation measures,
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development-sensitive dispute settlement mechanisms, careful management of services
liberalization, and provisions for technology transfer. The literature emphasizes that addressing
development disparities requires a multifaceted approach that goes beyond mere trade
liberalization to encompass broader developmental goals. It also highlights the need for
flexibility, continuous monitoring, and adjustment of the AfCFTA's provisions to ensure that it
promotes fair and equitable trade while supporting the development of all member states.

2.4.3 The Role of Regional Economic Communities in AfCFTA Implementation

The implementation of the African Continental Free Trade Area (AfCFTA) occurs within a
complex landscape of existing regional economic communities (RECs). This section reviews
the literature on the role of RECs in AfCFTA implementation and strategies for resolving
potential conflicts between regional and continental regulations.

Several scholars highlight the crucial role that RECs can play in facilitating AfCFTA
implementation. Akinbobola and Ojomo (2020) argue that RECs can serve as important
intermediaries between the national and continental levels, helping to translate AfCFTA
commitments into regional and national policies.

Luke and MacLeod (2019) discuss how RECs can contribute to capacity building and technical
assistance efforts, leveraging their existing institutional structures and expertise to support
AfCFTA implementation. They argue that this role is particularly important for supporting less
developed member states. Lessons drawn from other regions' experiences in managing the
relationship between regional and continental integration efforts are also crucial to
understanding the roles, opportunities, challenges, and mechanisms through which RECs can
promote continental trade agreements. Söderbaum (2019) compares African regionalism with
experiences from Europe and Asia, highlighting potential lessons for managing the RECs-
AfCFTA relationship.l

Draper, Kalaba, and Alves (2014) examine the experience of the Tripartite Free Trade Area
(TFTA) between COMESA, EAC, and SADC as a potential model for AfCFTA-REC relations.
They argue that the TFTA's approach to harmonizing different regional regimes could offer
valuable insights for the broader continental integration process.

The Future of RECs in the AfCFTA Era

Looking to the future, scholars discuss various scenarios for the evolution of RECs within the
AfCFTA framework. Keohane (2020) explores potential pathways for the transformation of
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RECs as the AfCFTA is implemented, considering scenarios ranging from the gradual
absorption of RECs into the continental framework to their continued existence as distinct
entities with specialized roles.

Nshimbi (2021) examines the potential for RECs to evolve into implementing agencies for the
AfCFTA, taking on specialized roles in areas such as trade facilitation, standards
harmonization, and sectoral cooperation. He argues that this could leverage the existing
capacities and expertise of RECs while promoting overall continental integration.

Resolving Conflicts between Regional and Continental Regulations

The literature proposes several approaches for resolving potential conflicts between regional
and continental regulations: For every trading agreement as significant as the AfCFTA
agreement, there must be dispute resolution mechanisms to allow for the effective arbitration
of trade conflicts, in order to ensure smooth application of the elements of the agreement. As
trade consists of a system of complex institutions, personalities, channels, instruments, and
infrastructures, the possibilities of conflict will remain an ever-present risk, which ought to be
mitigated by putting in place mechanisms to address them as and when they occur. Also,
because the agreement will require regulations that guides its effective implementation and
practice, conflict resolution mechanism becomes an inherent necessity. In view of this thereof,
the works of scholars as mentioned below are of great significance, as are the theories proposed
by them. Starting with the explicit hierarchy proposition by Mupangavanhu (2019), he argues
for the establishment of a clear legal hierarchy between the AfCFTA and REC agreements, with
the AfCFTA taking precedence in cases of conflict. On the other hand, Simo (2020) proposes
the development of specific protocols for harmonizing AfCFTA provisions with existing
regional regulations, allowing for a gradual and negotiated process of alignment, whereas
Gathii (2020) advocates for a flexible approach to implementation that allows RECs to
maintain certain distinct regulations where necessary, within an overall framework of
progressive convergence towards AfCFTA standards. Besides these three, the Institutional
mechanisms approach proposed by Luke and MacLeod (2019), emphasizes the importance of
establishing robust institutional mechanisms for ongoing dialogue and coordination between
the AfCFTA Secretariat and REC institutions to address conflicts as they arise.

In conclusion, the literature reveals a complex picture of the role of RECs in AfCFTA
implementation. While RECs are seen as important building blocks for continental integration,
their multiple and overlapping memberships present significant challenges. The literature
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emphasizes the need for careful coordination and harmonization between regional and
continental frameworks, while also recognizing the potential for RECs to play crucial roles in
facilitating AfCFTA implementation. Resolving conflicts between regional and continental
regulations will require a combination of clear legal frameworks, flexible implementation
approaches, and strong institutional mechanisms for ongoing coordination.li

2.4.4 The AfCFTA Dispute Resolution Mechanism: Adequacy and Protection for Member
States and Investors

The effectiveness of the dispute resolution mechanism is crucial for the success of any
international trade agreement. This section reviews the literature on the African Continental
Free Trade Area (AfCFTA) dispute resolution mechanism, examining its adequacy in providing
protection for member states and investors.

Overview of the AfCFTA Dispute Settlement Mechanism

An important feature of the AfCFTA is the Protocol on Dispute Settlement which provides for
the rules and procedures for the settlement of disputes within the AfCFTA. The AfCFTA
Agreement establishes a dispute settlement mechanism in its Protocol on Rules and Procedures
on the Settlement of Disputes. Gathii (2019) provides a comprehensive analysis of this
mechanism, noting that it largely follows the model of the World Trade Organization (WTO)
Dispute Settlement Understanding. He highlights key features including consultations, panel
proceedings, and an appellate body. Provided for by Article 8 (1) and (2) of the rules
establishing the agreement (Status of Protocols, Annexes and Appendices), provision allows
for the coming into force of the dispute resolutions mechanisms pursuant to the coming into
effect of the agreement and its signing/ratification thereof. Unlike the majority of the African
regional economic community courts that are modelled after the Court of Justice of the
European Union, the AfCFTA Dispute Settlement Mechanism (AfCFTA-DSM) is modelled
after the World Trade Organization Dispute Settlement Understanding. This is not the first time
that an African trade dispute mechanism has been modelled after the WTO model. The
Tripartite Free Trade Area Agreement between three regional economic communities in Africa
– COMESA, EAC and SADC – preceded the AfCFTA. Its DSM is also based on the WTO
model. While there is nothing inherently wrong in the transplantation of dispute systems such
as the WTO model, the success of such transplants depends on the extent of the adaptation to
the socio-political realities of the destination. In Africa, whether the model was transplanted
from the European Union or the WTO, the experience reveals a strong discontent and apathy
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towards a highly legalized and formal trade dispute system. In relation to the Economic
Community of West African States (ECOWAS), the Southern African Development
Community (SADC) and the East African Community (EAC), the discontent has manifested
in one form of backlash or the other with varying success.lii

Akinkugbe (2019) further elaborates on the structure of the dispute settlement mechanism,
emphasizing its state-to-state nature and the absence of direct access for private parties. He
notes that this approach is consistent with most regional trade agreements but may have
implications for the protection of investor interests.

Strengths of the AfCFTA Dispute Settlement Mechanism

Several scholars highlight the potential strengths of the AfCFTA dispute settlement mechanism:

1. Promoting Rule of Law: Onyema (2019) argues that the establishment of a continent-
wide dispute settlement mechanism could significantly contribute to the rule of law in
African trade relations. She suggests that this could enhance predictability and security
for both states and investors.

2. Building on WTO Experience: Mbengue and Schacherer (2017) note that by adopting
a WTO-like model, the AfCFTA can benefit from the extensive jurisprudence and
experience of the WTO system. This could help in developing a coherent body of
African trade law.

3. Flexibility: Gathii (2019) highlights the flexibility built into the system, including
provisions for alternative dispute resolution methods such as good offices, conciliation,
and mediation. This flexibility, he argues, could be particularly useful in the African
context where diplomatic solutions are often preferred.

Challenges and Potential Weaknesses

However, the literature also identifies several challenges and potential weaknesses in the
current mechanism:

1. Capacity Constraints: Simo (2020) raises concerns about the capacity of many African
states to effectively participate in complex trade disputes. He notes that this could lead
to uneven access to justice within the system.

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 2. Enforcement Challenges: Onyema (2019) discusses the potential challenges in
enforcing decisions, given the voluntary nature of compliance and the absence of strong
centralized enforcement mechanisms.

3. Limited Access for Private Parties: Akinkugbe (2019) critiques the lack of direct access
for private parties, including investors, to the dispute settlement mechanism. He argues
that this could limit the effectiveness of the system in protecting investor rights.

4. Potential for Forum Shopping: With the existence of multiple dispute settlement
mechanisms (RECs, national courts, international arbitration), Oppong (2020) raises
concerns about the potential for forum shopping and conflicting decisions.

Investor Protection and Dispute Settlement

The protection of investor rights is a key concern in the literature. Mbengue and Schacherer
(2017) note that while the AfCFTA Agreement does not currently include a comprehensive
investment chapter, discussions are ongoing about incorporating investment provisions in
future phases.

Adeleke (2020) examines the implications of this gap, arguing for the need to develop a robust
African approach to investor-state dispute settlement that balances investor protection with the
right of states to regulate in the public interest. She proposes a hybrid system that combines
elements of traditional investor-state arbitration with a more state-centric approach.

Dagbanja (2020) takes a critical view of traditional investor-state dispute settlement

mechanisms, arguing that any future AfCFTA investment protocol should prioritize the
development objectives of African states. He proposes alternatives such as an African
investment court or a system of preliminary referrals from national courts to a continental body.

Interplay with Existing Mechanisms

The relationship between the AfCFTA dispute settlement mechanism and existing regional and
bilateral mechanisms is another important theme in the literature. Gathii (2019) examines the
potential for conflicts of jurisdiction and suggests the need for clear rules on the relationship
between different forums. Kiplagat (2021) explores the potential for the AfCFTA mechanism
to serve as an umbrella framework, harmonizing dispute settlement across the continent. He
argues that this could help address the fragmentation of African trade law and promote
consistency in interpretation.

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Proposals for Enhancement

Scholars have proposed various enhancements to strengthen the AfCFTA dispute settlement
mechanism:

1. Capacity Building: Simo (2020) emphasizes the need for significant capacity building
efforts to ensure that all member states can effectively participate in the system. He
proposes the establishment of a dedicated legal aid facility for less developed countries.

2. Advisory Opinions: Onyema (2019) suggests incorporating a system of advisory

opinions to help clarify interpretations of the AfCFTA Agreement proactively.

3. Compliance Monitoring: Gathii (2019) proposes strengthening the compliance

monitoring aspects of the mechanism to enhance the effectiveness of rulings.

4. Investor-State Dispute Settlement: Adeleke (2020) argues for the development of a

uniquely African approach to investor-state dispute settlement as part of future
negotiations on the investment protocol.

5. Harmonization with RECs: Oppong (2020) emphasizes the need for clear rules on the
relationship between the AfCFTA mechanism and existing REC dispute settlement
systems to avoid conflicts and promote coherence.

Comparative Perspectives

The literature also draws lessons from other regional and multilateral dispute settlement
systems. Broude (2021) compares the AfCFTA mechanism with those of other regional blocs
like the EU and ASEAN, highlighting potential lessons for Africa.liii

Alschner (2022) examines innovations in recent trade agreements globally, such as filter
mechanisms and appellate review, suggesting how these could be incorporated into the
AfCFTA system to enhance its effectiveness.

In conclusion, the literature reveals a mixed picture regarding the adequacy of the current
AfCFTA dispute resolution mechanism in providing protection for member states and
investors. While the mechanism is seen as a significant step towards establishing a rule-based
trade regime in Africa, concerns remain about capacity constraints, enforcement challenges,
and the protection of investor rights. Scholars emphasize the need for ongoing refinement of
the system, including potential developments in investor-state dispute settlement, capacity
building efforts, and clear rules on the relationship with other dispute settlement mechanisms.
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The evolution of the AfCFTA dispute settlement system is likely to be a crucial factor in the
overall success of the continental free trade area.

2.4.5 Strengthening the AfCFTA's Legal and Regulatory Ecosystem to Drive Inter-
Continental Trade and Economic Cooperation

What is the legal foundation of the AfCFTA?

The legal foundation of the AfCFTA is a treaty (international agreement) to which all the
Member States of the African Union (AU) will eventually belong. These are sovereign
countries, and they must consent to international obligations. There must be certainty about the
obligations they accept and about the procedure for the entry into force of international
agreements, in whatever format they are concluded. The texts of international agreements must
be negotiated, and once finalised, be adopted. Then they must be signed and be ratified before
they will enter into force for the states that have deposited instruments of ratification of
accession.liv

Ratification of the AfCFTA

Consent to new treaties happens through international procedures called ratification and
accession. Ratification is the act whereby a State indicates its consent to be bound to a treaty.
In the case of multilateral agreements (as opposed to bilateral agreements), ratification is
usually accomplished by depositing the instrument of ratification with the depositary chosen
by the negotiating states for that purpose.

Accession to the AfCFTA

Accession is the act whereby a state accepts the offer or the opportunity to become a party to a
treaty already negotiated and signed by other states. It has the same legal effect as ratification.
Accession usually occurs after the treaty in question has entered into force.

Adoption of the AfCFTA by the Assembly of the African Union

The relevant provisions in the founding Agreement of the AfCFTA are Articles 22 to 24. Article
22 says the AfCFTA Agreement shall be adopted by the Assembly of the AU. This happens
once negotiations have been finalised. Note that the AfCFTA Agreement has been defined as
the Agreement establishing the AfCFTA, and its Protocols, Annexes and Appendices, which
shall form an integral part thereof. (Article 1 AfCFTA Agreement.) It shall be open for
signature and ratification or accession by the AU Member States, in accordance with their
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respective constitutional procedures. Each government contemplating membership of the
AfCFTA should follow the applicable procedures in its constitution on how international
agreements are to be concluded and are subsequently implemented. In some instances, national
parliaments have to approve a new agreement before the executive branch of government can
deposit an instrument of ratification or accession.lv

Entry into force of the AfCFTA

Article 23 provides that the AfCFTA’s founding agreement and its Protocols on Trade in
Goods, Trade in Services, and on Dispute Settlement shall enter into force 30 days after the
deposit of the 22nd instrument of ratification. The AfCFTA Agreement is in force since 30 May
2019, but the negotiations for some aspects are not yet done. Trade under the AfCFTA has not
yet started, mainly because of lack of consensus on certain rules of origin and some tariff
concessions. The Annex on Trade Remedies also requires additional work.

Phase Two and Phase Three Protocols.

The Phase Two AfCFTA Protocols (on Investment, Intellectual Property Rights, Competition
Policy) and any other instrument within the scope of this Agreement deemed necessary
(Protocol on Digital Trade and Protocol on Women and Youth in Trade) shall enter into force
30 days after the deposit of the 22nd instrument of ratification. For any AU Member State
acceding to this Agreement, the Protocols on Trade in Goods, Trade in Services, and the
Protocol on Rules and Procedures on the Settlement of Disputes shall enter into force in respect
of that State on the date of the deposit of its instrument of accession. For acceding AU Member
States, the Protocols on Investment, Intellectual Property Rights, Competition Policy, and any
other Instrument within the scope of this Agreement deemed necessary, shall enter into force
on the date of the deposit of their instruments of accession.

The National Implementation Committees

National implementation committees are crucial to the roll-out of the framework of the
AfCFTA agreement and are mandated to work with the AfCFTA Secretariat for the
implementation of key provisions of the agreement. The roles of the NICs are further elaborated
as thus:

1. Form multi-stakeholder committee/s. This could be a government-led committee, or a

national task force formed to serve as an NIC, involving a steering committee, a secretariat

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 with an experienced and well-connected lead and a set of working groups that involve the
private sector and engage in range of activities.
2. Develop a clear mandate and results framework. The committee’s (legal) mandate should
be clearly defined, outlining its goals, objectives, and responsibilities. It is important to
have legal backing, budget and performance indicators based on a clear results framework.
Equally important is to develop a mandate that fits AfCFTA responsibilities into the wider
trade and development scene.
3. Provide adequate resources. The committee will need adequate resources, including
funding, staffing and technical support, to carry out its work effectively, with a focus on
coordination on activities and where appropriate implementation.

Figure 1.0 (In the figure below, is the National Implementation Committee, otherwise known as NICs, that
manages the roll-out of the AfCFTA agreement).

4. Engage in consultation and outreach. The committee should engage in regular consultation
with stakeholders and carry out outreach activities to build awareness of the AfCFTA and
the committee’s work.
5. Monitor and evaluate. The committee should establish a robust monitoring and evaluation
framework to track progress and identify challenges in the implementation process.

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There are various provisions in the legal AfCFTA texts that ascribe a role for the AfCFTA
Secretariat in monitoring and assisting AfCFTA implementation, with three types of roles that
the AfCFTA Secretariat can play in the implementation process identified as:

1. Institutional support. State Parties are required to set up AfCFTA NICs ‘to ensure
meaningful participation of all stakeholders and come up with national AfCFTA and
Boosting Intra-African Trade Strategies’. The setup and operation of NICs could be
supported by exchange of experiences and deeper technical assistance.
2. Monitoring and evaluation. The AfCFTA Agreement lists the functions to be carried out on
monitoring framework as ‘implementation, administration, facilitation, monitoring and
evaluation of the AfCFTA’. Further ingredients for monitoring and review also exist at the
level of specific protocols.
3. Capacity building and technical assistance around trade topics. The Protocol on Trade in
Services states that the Secretariat shall coordinate and provide technical assistance and
capacity-building. In investment for instance, the Secretariat shall work with the Pan-
African Trade and Investment Agency to coordinate the provision of technical assistance.
We scope out three roles, with associated roadmaps, for the AfCFTA Secretariat in
facilitating and monitoring implementation:
• Sharing best practices around NICs from different State Parties.
• Undertaking monitoring on AfCFTA trade policies including the AfCFTA policy
review and;
• Assisting with trade policy implementation incountry through capacity building and
technical assistance.

While the first role is centred around the formation of NICs, NICs themselves could also
become counterparts in the monitoring and technical assistance roles. Finally, we discuss
accessing Aid for Trade financing to make such activities happen, noting that committees
should not be dependent solely on aid, but predominantly on national finance. A range of
bilateral and multilateral donors and other strategic partners would like to support the AfCFTA,
through the Secretariat and/or at country level. These efforts can be leveraged for financial
resources and other support. It should be emphasised that the AfCFTA is not only a free trade
agreement but also a development strategy.lvi

The Depositary of the AfCFTA Agreement (including subsequent Protocols) is the Chairperson
of the AU Commission. The Depositary shall inform all AU Member States of the entry into
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force of the AfCFTA Agreement and its Protocols. Why does the AfCFTA consist of a founding
agreement, several Protocols, Annexes, and Appendices? The answer is that they are necessary
in terms of what the AfCFTA wants to achieve and in terms of how a modern preferential trade
regime is implemented. The AfCFTA provides for a comprehensive and rulesbased preferential
trade regime for goods and services, and for related disciplines such as investment,
competition, and intellectual property rights. All these instruments are necessary. They should
speak to each other and be drafted in a manner that current practices and new developments on
matters such as digital trade can be included in the functioning of the AfCFTA.lvii

The AfCFTA State Parties should make deliberate efforts to disseminate technical information
about the functioning and status of all the legal instruments to the private sector. This will be
vital for the success of this important new preferential trade arrangement.

2.5 Conclusion

In conclusion, the literature reveals that the AfCFTA’s legal and regulatory framework is
pivotal for fostering inter-continental trade and economic cooperation among African member
states. Despite the challenges posed by diverse legal systems, overlapping memberships in
RECs, and varying levels of economic development, the AfCFTA’s comprehensive and rules-
based approach aims to harmonize trade policies and promote inclusivity. Effective
implementation of the AfCFTA requires addressing these complexities through coordinated
efforts, robust dispute resolution mechanisms, and adaptive legal frameworks. Ultimately, the
success of the AfCFTA hinges on its ability to create a unified market that leverages Africa’s
economic potential while ensuring equitable benefits for all member states.

CHAPTER THREE

3.0 RESEARCH METHODOLOGY

3.1 INTRODUCTION

This chapter presents the methodological framework employed in examining the legal and
regulatory landscape of the African Continental Free Trade Area (AfCFTA) and its role in
fostering inter-continental trade and economic cooperation. The research adopts a hybrid
approach, combining both qualitative and quantitative methods to provide a comprehensive
understanding of the complex interplay between legal frameworks, economic integration, and
trade facilitation across African member states.

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3.2 RESEARCH DESIGN

The study employs a mixed-methods research design, incorporating both qualitative and
quantitative approaches. Mixed methods research facilitates a more complete understanding of
complex research problems. Tashakkori & Teddlie (2021), in "Mixed Methods in Research:
Fundamentals of Design and Analysis,".lviii This hybrid or mixed methodology was selected to:

➢ Capture the complexity of legal and regulatory frameworks across different

jurisdictions.
➢ Measure the quantifiable impacts of trade regulations on economic cooperation.
➢ Understand stakeholders' perspectives on implementation challenges.
➢ Analyse the effectiveness of dispute resolution mechanisms.

3.2.1 QUALITATIVE COMPONENT

The qualitative aspect involves:

Document analysis of AfCFTA legal texts, protocols, and annexes such as the Tralac data base
on AfCFTA agreement and its related protocols which are found on the platform at
https://www.tralac.org/resources

Semi-structured interviews with key stakeholders via use of questionnaire, which captured the
view of 30 respondents across different shades of profession, including legal, business, public
service, and industry-based professionals.

Case studies of existing regional economic communities such as the East Africa Regional Trade
Community and even the existential threat of the emerging BRICs global economy shift, which
has major players from across Africa such as South-Africa, and Nigeria who have expressed
interest to join the BRICs block.

Comparative analysis of legal frameworks across member states, particularly with the disparity
of legal systems across the continent which provides a diverse source of opportunities and
challenges in the harmonisation of a single regulatory framework for the implementation.

3.2.2 QUANTITATIVE COMPONENT

The quantitative dimension encompasses, statistical analysis of trade data, survey

questionnaires distributed to stakeholders, economic indicators assessment, and compliance
metrics evaluation.

3.3 SAMPLE AND SAMPLING TECHNIQUE

The sample considered in the study consisted of lawyers, law students, trade experts, public
policy experts, business institutions, economics professionals, a list of whom consisted 30 in
number. A sample size of 30 for a qualitative interview was an appropriate number since
qualitative studies are not concerned about the numbers or representativeness of the target
population as noted by Steinberg (2008).lix In essence, qualitative interviews are conducted to
explain and explore phenomena in-depth to discover new constructs, themes, and relationship.
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However, the sample of 30 was a diverse sample given that the individual managers or the
sample units were drawn from different location and firms. Involving 30 interviewees were
quite a considerable number of the interviews to reach saturation levels. In essence, Alvesson
and Skoldberg (2010)lx defines saturation during interviews as the point when no new data is
revealed by further collection of data since all the questions asked have been exhausted by the
initial qualitative interviews.
3.3.1 SAMPLE POPULATION

The study population comprised of the following: (a) government trade officials from AfCFTA
member states, (b) legal practitioners specializing in international trade law, (c) Representatives
from regional economic communities, (d) trade policy experts and academics, (e) business
leaders engaged in cross-border trade, and (f) officials from dispute resolution bodies.

3.3.2 SAMPLE SIZE

The sample identified in this study was mainly lawyers, law students, international law experts,
books, journals, articles, legislations, case laws, etc. Also, interviews were recorded from
respondents working at related agencies such as, embassies and high commissions, the Ministry
of Trade and Industry, Standards Bureau, etc. In total, the size of the sample was 30 respondents
who were identified based on convenience sampling given that they were identified by using
friends and family networks and official channels of engagement. This sample size was
considerable since the study was exploratory where interviews are conducted. According to
Barbour (2008),lxi interviews generally consist of small sample size.
The research employs a stratified sample of 30 survey respondents across all works of life, in-
depth interviews with key stakeholders, key case studies of trade dispute resolutions
frameworks, and analysis of regional economic communities.

3.3.3 SAMPLING TECHNIQUE

The study utilizes stratified random sampling to ensure representation across geographical
regions and economic development levels. Purposive Sampling for selecting expert
interviewees and case studies and quota sampling to maintain balanced representation across
stakeholder groups.

3.4 DATA COLLECTION METHODS

The research question concerns the study of “A Critical Examination of the Legal and
Regulatory Framework of AfCFTA in Driving Inter-Continental Trade and Economic
Cooperation amongst African Member States”. Moreover, the question asks, at least from the
researcher’s point of view, were, (a) What are the key legal and regulatory challenges facing
the implementation of the AfCFTA across diverse African economies? (b)How can the
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AfCFTA's legal framework effectively address the varying levels of economic development
among member states while promoting fair and equitable trade? (c) What role do regional
economic communities play in the implementation of the AfCFTA, and how can potential
conflicts between regional and continental regulations be resolved? (d) To what extent does the
current AfCFTA dispute resolution mechanism provide adequate protection for member states
and investors, and (e) How can the AfCFTA's legal and regulatory ecosystem be strengthened
to better drive inter-continental trade and economic cooperation?
During an online chat session with one of the respondents, several frustrations surfaced, yet
they were able to offer valuable insights on the challenges, and prospects, whilst barely
struggling to indicate the major successes, which they remarked were far from ad few in-
between, hence the reason for creating the contemporary problems associated with the
problems of the study. For this reason, personal interviews were not likely to be productive,
hence the reason why the research is extensively supported by key review of literature and
reference to other relevant data.
The questions asked called for both positive and negative expressions concerning various parts
of the research topic, and the results of this survey provided much of the research data, which
were corroborated with existing data related to the study.
3.4.1 PRIMARY DATA COLLECTION

Primary data is data collected in the fields during the period of research, making use of
questionnaires, consisting of online surveys distributed to trade officials and practitioners,
structured questionnaires focusing on the five key research questions and further breakdown
questions related to them, and Likert scale responses for quantitative analysis.

3.4.2 SECONDARY DATA COLLECTION

This includes both published and unpublished materials like books, journals, articles,
newsletters, press releases derived from both internet and other sources etc. These involved the
deployment of document analysis related to AfCFTA legal texts and protocols, National trade
policies and regulations, Regional economic community frameworks, Academic literature, and
trade reports. References were also made to statistical data covering trade flow statistics,
economic indicators, compliance reports, and dispute resolution records.

3.4.3 DATA ANALYSIS

This study used the hybrid qualitative and quantitative method of research, which is referred
by many scholars as the best research methodological framework for data collection and
analysis. Scholars emphasize that mixed methods research enables stronger validation of
findings through methodological triangulation. According to Creswell & Plano Clark (2018)lxii
in their work "Designing and Conducting Mixed Methods Research," this approach allows
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researchers to cross-validate findings using multiple data sources, thereby increasing the
credibility and trustworthiness of research outcomes. Johnson & Onwuegbuzie (2004), in their
seminal paper "Mixed Methods Research: A Research Paradigm Whose Time Has Come,"lxiii
argue that triangulation helps minimize the weaknesses inherent in single-method approaches
while maximizing their respective strengths.
3.4.4 DATA ANALYSIS TOOL
Interviews provide qualitative data and the methods of analyzing qualitative data differ from
the analysis of qualitative data as noted by Barbour (2008).lxiv In essence, analysis of the
qualitative data was conducted using content analysis. Content analysis refers to the approach
that is used for analysis qualitative data in which the responses are clustered or coded based on
the arising themes from the qualitative data or interview transcripts (Barbour 2008). analysis
helped to code or cluster the responses obtained by grouping responses hence enabled.
3.5 CONSTRUCTION OF THE QUESTIONNAIRES
This researcher had valuable input to the construction of the research questionnaire. This is
helpful because it allows the researcher to be able to enhance desired data and accurate
presentation of ideas to avoid misdirection or skewed data. The researcher ensured questions
were not based on selective bias, to ensure credibility, validity, and authenticity of the data as
well as accuracy of the research work. `Since the questionnaire was very open-ended and
covered all aspects of the current topic, respondents had adequate freedom to express
themselves about any issue with the questionnaire. The questionnaire directly invited both
positive and negative responses. This feature was helpful. As discussed above, this
questionnaire asked about the respondent’s knowledge with reference to the “A Critical
Examination of the Legal and Regulatory Framework of AfCFTA in Driving Inter-Continental
Trade and Economic Cooperation amongst African Member States”.
3.5. MICROANALYSIS
The analysis process begins with an extremely analytical reading of the learners’ responses to
both questionnaires. There are several goals for this reading. The first is to become very
familiar with the details contained in the respondent’s responses. A second goal is to start
looking for subtle distinctions in the respondent’s meaning based on a respondent’s choice of
a particular word or phrase. For example, when a learner commented “More materials, like
books, from the legislations on principles of Trade Law and Regulations” what is the complete
message? Is this simply a call for reliability on legislative sources and books? Alternatively, is
this a statement concerning mere ideation of the conceptual and practical issues related to
enforcement of the legal and regulatory framework required for the successful implementation
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of the AfCFTA agreement? There was a perceived lack of practical equivocation on the part of
the stakeholders, with regards the “A Critical Examination of the Legal and Regulatory
Framework of AfCFTA in Driving Inter-Continental Trade and Economic Cooperation
amongst African Member States”. Are there other nuances in this statement that can help one
gain a full understanding of what the respondent is trying to communicate? Therefore,
microanalysis would stop short of analysis at the word level and limit itself to nuances visible
in entire statements. Another goal of microanalysis is to look for conceptual categories of
responses that might relate to the purpose of this study. That is, there was a lack of material
from a stakeholder perspective, or “reality” to use the respondent’s term. This process
continues until it appears that most of the conceptual categories, related to the research goal
are in the notes. The categories used to develop theory are primarily conceptual categories, not
demographic categories. These conceptual categories go into ATLAS.ti as codes along with
comments defining them. The research data is now ready for open coding. Open Coding Open
coding is the process of going back through the research data and assigning to significant
statements in the data the codes determined during microanalysis. To code a statement in
ATLAS.ti, one highlights that statement and then drags a code from a list to the highlighted
statement. Creating hyperlinks between statements denotes a special relationship between
them. Epistemic primitives assigned to each link signify the nature of their relationship. Some
of the epistemic primitives predefined in ATLAS.ti are it discusses, evaluates, explains,
expands, and supports.
3.6 COMPARISON TO THE LITERATURE
The final task in a grounded theory qualitative study is to compare the results obtained, that is,
the theory derived from the data, with the results and theories reported in similar studies. If the
current study generally matches previous studies, then the findings confirm each other. If they
are significantly different, then the researcher seeks out and explains plausible reasons for the
disparity. However, since the researcher’s findings were grounded in the research data, those
findings are valid even if at variance with the literature. The only question is why they are
different. This chapter sought to explain the research theory, tools, and methods used in this
grounded theory study.
3.7 ETHICS
A sample of consent form has been presented in the appendix A section. Hence, participants
involved in the study were recruited after an informed consent was obtained. According to
Cooper and Schindler (2010),lxv informed consent means that individuals to be sampled in a
study are first informed about the study to comprehend its aims and benefits to them before
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consenting to take part. Hence, this study was based on voluntary participation amongst the
target population, but they were encouraged to take part in the study by explaining to them the
benefits of the study to add to limited literature and implications for further research. Generally,
the responses remained anonymous during the interviews and were only identified as
interviewee 1 to interviewee 30. Ethical consideration was also achieved by asking permission
to conduct the study. Moreover, the study participants could withdraw at their own will and
convenient time from the interview process.
3.8 RELIABILITY AND VALIDITY
Corbin and Strauss (2008)lxvi define reliability, as the ability of a data collection instrument to
yield the same results when used in a similar setting (Corner 2009). On the other hand, validity
refers to how accurate a data collection instrument can be in measuring what it was developed
to measure (Dillman 2010). To ensure that the study result is valid, the investigator ensured
that the interview questions were specific regarding the concepts of Trade law, and the Africa
Continental Free Trade Area Agreement, and concepts of its legal and regulatory requirements.
In addition, a pilot study was conducted to determine whether the questions were valid,
understandable, and answerable. This increased the validity as well as the reliability of the
study (Dul and Hak 2008).lxvii
3.9 CONCLUSION

The scholarly literature consistently supports the value of mixed methods research in producing
more comprehensive, valid, and useful research outcomes. The integration of qualitative and
quantitative approaches offers numerous advantages that address the limitations of single-
method approaches while capitalizing on their respective strengths. This chapter has outlined
the comprehensive methodological approach adopted for this study. The hybrid research
design, combining qualitative and quantitative methods, enables a thorough examination of the
AfCFTA's legal and regulatory framework. The sampling strategies, data collection methods,
and analytical tools have been carefully selected to address the research questions and test the
hypotheses effectively. The methodology provides a robust foundation for analyzing the
complex interplay between legal frameworks and economic integration in the African context.

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 CHAPTER FOUR

DATA ANALYSIS AND PRESENTATION

INTRODUCTION

This chapter presents a comprehensive analysis of the empirical data collected through mixed-
method research approaches to examine the effectiveness of the African Continental Free Trade
Area's (AfCFTA) legal and regulatory framework in fostering inter-continental trade and
economic cooperation. Drawing from both qualitative and quantitative data gathered from trade
officials, policy experts, and economic stakeholders across member states, this chapter
illuminates the practical implications and operational dynamics of AfCFTA's implementation
mechanisms. The analysis encompasses critical examination of survey responses from 30
respondents across diverse fields, through systematic content analysis and statistical
interpretation, this chapter explores the intricate relationships between regulatory compliance,
trade facilitation measures, and economic integration outcomes. The findings presented herein
provide crucial insights into the practical effectiveness of AfCFTA's legal instruments,
highlighting both the successes and challenges in harmonizing diverse national trade policies
under a unified continental framework. By employing robust analytical frameworks and
established research methodologies, this chapter bridges the gap between theoretical
postulations and empirical evidence in understanding AfCFTA's role in reshaping Africa's trade
landscape.

ANALYSIS AND PRESENTATION OF DATA

Figure 1.1 (Data showing Africa’s global trade contributions)

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From the data above, despite the adoption of the AfCFTA agreement, much work needs to be
done with regards promoting Africa’s external trade contributions, which will exponentially
boost economic development and accelerate industrialization in the continent. With a
constantly increasing population, Africa should leverage on its youthful manpower, and
creativity, by ensuring it exploits the major factors of production (labour), which is crucial for
trade growth.

As had been extensively discussed in Chapter two (2) of the work, the role of regional economic
communities (RECs) is crucial to the implementation of the AfCFTA agreement and the
promotion of the Vision 2063 agenda for development. The views of respondents from the field
survey resonates strongly with this sentiment, as they shared below in response to the question
on:

What role do regional economic communities play in the implementation of the

AfCFTA?

They coordinate negotiating positions and provide support to member states for
implementation, and mediate disagreements between member states- (Respondent No.3)

As seen from the respondent No.3 above, RECs can serve as mediums of facilitating and
coordinating trade negotiations, provide support to member states for implementation and
media disagreements between member states. This is a very good insight, which gives a
positive outlook on the role of RECs, which many scholars have feared to some of the
challenges in adopting a centralized legal and regulatory framework, due to its overlapping
interests.

Another view expressed in response to the question on the role of RECs in implementation of
AfCFTA, respondent No. 12 opined that; “Regional economies have the proclivity to institute
barrier-free trade policies and regulations in intra and inter boundary spectrums, as they're
the first port of call for the effective implementation of a free market. However, variety in trade
laws, languages, economies of scale and currencies will continue to impede the realization of
AfCFTA if there remain deep-seated differences between regions on those lines. (Respondent
No.12) The respondent’s view gives a thoughtful insight of the role of RECs, giving a balanced
perspective of their role as facilitators of trade policy regulations, whilst also raising concern
about barriers of language, trade law, economic variations that has a proclivity to de-accelerate
the progress of the agreement.

From another nuanced perspective Respondent No.16 below, refers to RECs as watchdogs and
civil society advocates, that work towards advancing single-currency campaigns, promoting
Page 50 of 76
the vision for economic integration, and campaigning for business-friendly laws and effective
dispute resolution frameworks.

To advocate for single-currency and promote the vision of African economic integration.
Campaign for business-friendly laws, institutions, and effective and efficient dispute settlement
mechanisms. (Respondent No.16)

Whilst for Respondent No.20, this is what they had to say; “Regional Economic Communities
(RECs) play a crucial role in implementing the African Continental Free Trade Area (AfCFTA)
by facilitating trade integration, harmonizing policies, and providing capacity-building support
to member states. They help align existing regional trade agreements with AfCFTA objectives,
ensuring smoother customs procedures and regulatory standards across borders. RECs also
assist in conflict resolution, monitor progress, and coordinate efforts between national
governments and the African Union, ultimately accelerating intra-African trade and fostering
economic growth on the continent.” (Respondent No.20). REC’s are important for the
successful implementation of the AFCFTA agreement not only because of their ability to
coordinate negotiating positions and provide support to member states for implementation, also
because they can mediate disagreements between member states, this is the viewed shared by
(Respondent No.27), who believes RECs are important as they serve supportive role for the
successful implementation of the agreement.

Figure 1.2 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The above data indicates respondent’s level of understanding of the AfCFTA legal framework
on a scale of 1-to-5, with 1 being lowest and 5 being highest. From the results of the data, the
average understanding is 2.90/5, which is slightly above average, and represents a fairer
understanding of the legal framework. This is understandable, given that the AfCFTA is a recent
treaty, spanning barely 3 years since its full inception.

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Figure 1.3 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The figure shows respondents view of the key legal and regulatory challenges facing the
implementation of AfCFTA across Africa member states. From the poll of respondents and the
available options to choose from, “Environmental laws and Labour market regulations” and
“Financial regulation challenges” ranked highest on first choice rating, with a frequency rate
of 21, representing 18%. Whilst Competition Laws, Regional integration frameworks, and
Intellectual property rights ranked next highest with 17= (15%), 16= (14%), and 13= (11%)
respectively. The rest of the other options are below frequency of 9 and under 10% of ratings.
From the review of literature in Chapter 2 of the work, the issues of Environmental and labour
laws, financial regulation challenges, competition laws, regional integration frameworks, and
intellectual property have been referenced by many scholars as key legal and regulatory
challenges of the agreement. This is further supported by findings from a study done by
Hofmann, Osnago, and Ruta (2017), as seen below in Figure 1.4.

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Figure 1.4 (Study by Hoffman, Osnago and Ruta (2017).

Figure 1.5 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The data above shows respondents view on the likelihood for the factors identified in Figure
1.3, to hinder the success of the AfCFTA agreement. From the data, a Net Promoter Score
(NPS) rating of -36 is shown, indicating a highly negative likelihood. Though the progress on
the implementation of the legal and regulatory ecosystems will continually expand overtime,
it is important to note that ensuring the right frameworks are adopted is crucial, hence the
need to minimise the levels of deregulation to ensure compliance and efficiency.

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Figure 1.6 (AfCFTA SURVEY QUESTIONNAIRE-2024)

A significant factor for the success of every treaty and legal and regulatory regime can be seen
in its dispute resolution mechanisms, aimed at redressing related conflicts and ensure equity
and fairness. This is covered by the research, as shown in the data above, where respondents
are requested to share their opinion on what the best dispute/conflict resolution mechanisms
can be resolved particularly in situations of conflict of laws between regional and continental
regulations. The data shows Arbitration and Mediation are ranked highest with 25 and 24
frequency rating, with Fines, Suspensions, Sanctions, and Litigation ranking at 14, 12, 12, and
11 respectively. Given that trade is a majorly civil law, it is not surprising to see arbitration and
mediation ranked highest as preferred options for dispute and/or conflict resolution.

Figure 1.7 (AfCFTA SURVEY QUESTIONNAIRE-2024)

Are you familiar with the African The data shown in the chart (Figure 1.7)
Continental Free Trade Area
(AfCFTA)? indicates respondents’ familiarity with the
AfCFTA agreement, with 18 out of 30
3=10%
respondents, representing 68% saying they
are familiar with AfCFTA, whilst 8 out of 30,
8= 28%
representing 28% saying maybe they are
18= 62%
familiar with it, and only 3 out 30,
Yes representing 10% saying they are not familiar
Maybe
No with the agreement at all. Though the statistic
is encouraging, it however means more public education needs to be done to increase awareness
and understanding of the agreement.

Page 54 of 76
 M u lt ip le valu e s b y 'Cat e go r ie s 'Whic h of t he following do you t hink will
benefit most from AfCFTA? ?

1
0.9
#REF!
0.8
0.7 #REF!
0.6 #REF!
0.5
#REF!
0.4
0.3 #REF!
0.2 #REF!
0.1 0000000 0000000 0000000 0000000 0000000 0000000 0000000 #REF!
0
0 0 0 0 0 0 0

Figure 1.8 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The data above shows respondents view of the sectors/agents most likely derive the most
benefit from the AfCFTA agreement. Though quite strangely many believe none will be
benefiting significantly from the agreement, it is important to note that the commitment that
brought about the establish of the AfCFTA is geared towards significantly promoting trade and
investment across all business sectors, including Large Corporations, SMEs, Informal trading
sectors etc. This is the embedded vision of AfCFTA as it leverages Africa’s massive industrial
potential.

Figure 1.9 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The above data indicates respondents view of the adequacy of dispute resolution mechanisms
under the AfCFTA framework, in providing protection for treaty member-states of the
agreement. The Net Promoter Scores is -71, which gives a negative view of the perception
about the issues.

Page 55 of 76
Figure 2.0 (AfCFTA SURVEY QUESTIONNAIRE-2024)
The data above shows respondents views on how AfCFTA legal and regulatory ecosystem can
be strengthened to better drive inter-continental trade and economic cooperation. The options
of Trade Equity and Labour and Environmental safeguards rank highest, with 17 first (1st)
choice selections each, followed by the deployment of CRM, Legal & Regulatory Compliance,
Value Chain Infrastructure, and Institutional Frameworks receiving 14, 13, 12, and 11
respectively. Peace and security, ranks lowest, though it is part of the most existential threat to
trade flow and harmonisation.

Do you believe the current legal framework of AfCFTA

adequately addresses issues of intellectual property rights?
16 15 60%
14 50%
12 10
percentage

10 40%
48%
8 30% Series1
6
6 32% Series2
20%
4 19%
2 10%
0 0%
Yes Maybe No

Figure 2.1 (AfCFTA SURVEY QUESTIONNAIRE-2024)

With concerns of intellectual property rights being a major factor for the success of the AfCFTA
agreement, particularly in a talent-rich continent beaming with creativity, the respondents’
shared their views on the seriousness of the concern, with 48% showing that the current legal
framework does not sufficiently address concerns of IPL, followed by 32% who say the current
framework does not adequately address IP rights at all, with only 6% indicating that they think
Page 56 of 76
it does. The issue of Intellectual Property Law (IPL) and its associated rights have been
discussed in chapter two, and this data corroborates the concerns and sentiments raised by many
scholars with regards the subject of IPL.

Multiple values by 'Which of the following do you think will

benefit most from AfCFTA?
1

0.8 #REF!

0.6 #REF!

0.4 #REF!
#REF!
0.2
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 #REF!
0
0 0 0 0 0

Figure 2.2 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The data above shows respondent view on who are most likely to benefit from the AfCFTA
agreement. While majority (23) share the view that none of the options listed are likely to
benefit, SMEs, Large Corporations, Informal trade sectors, were listed by other as possible
beneficiaries.

Figure 2.3 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The above data shows respondents’ views on AfCFTA boosting Inter-African trade. With a
highest to lowest rating of 5-to-1, the average rating is at 3.65, which gives a highly positive
outlook on the expectations of the agreement in boosting trade in the continent. The general
expectation of the agreement is to see a massive improvement in trade, and this is supported
by the projections of many institutions such as World Bank, Tralac, International Economic
Commission etc.

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Figure 2.4 (AfCFTA SURVEY QUESTIONNAIRE-2024)

One of the biggest expectations also point to how the treaty is likely to boost FDI I the
continent. The respondent view of this shows that 71% expect that foreign direct investment
will be positively impacted by the framework, whilst 19% believe it could, and only 10% think
it wouldn’t.

Figure 2.5 (AfCFTA SURVEY QUESTIONNAIRE-2024)

Respondents were also asked about what they consider the most significant legal barrier to the
full implementation of the AfCFTA implementation. The views shown in the data above
indicate that 31% believe conflicting national laws could be the biggest impediment, followed
by 29% for weak enforcement mechanisms, 22% for lack of harmonized standards, and 13%
and 4% respectively for Insufficient legal capacity in member states and overlapping regional
agreements respectively.

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Figure 2.6 (AfCFTA SURVEY QUESTIONNAIRE-2024)

The data above shows respondents views on how to strengthen AfCFTA’s legal framework.
32% of the respondents prioritize strong enforcement mechanisms as a form of strengthening,
whilst 31% prioritize enhanced dispute settlement procedures, 16% chose improved
provisions for labor mobility, and 15% and 4% prefer, comprehensive rules on digital trade,
and stricter rules on state-owned enterprises.

Political will Public Which of the following do you think is most crucial for the success of AfCFTA?
3% awareness
and support
3%
Political will
Capacity
Infrastructure
building… Infrastructure development
development
32% Harmonization of regulations
Harmonization of
regulations Capacity building
42%
Public awareness and support

Figure 2.7 (AfCFTA SURVEY QUESTIONNAIRE-2024)

In figure 2.7 above, respondents share their views on what they consider the most crucial for
the success of AfCFTA. 42% of respondents consider harmonization of regulations crucial for
the success of AfCFTA, whilst 32% prefer infrastructure development, 20% prefer capacity
building, and 3% each for public awareness and political will.

Page 59 of 76
 Rank the following potential benefits of AfCFTA in order of importance
(1 being most important)

Job creation 15

Diversification of economies 7

Improved regional value chains 4

Technology transfer 3

Increased competitiveness 2

0 2 4 6 8 10 12 14 16

Figure 2.8 Figure (AfCFTA SURVEY QUESTIONNAIRE-2024)

Data shown above covers respondents’ views on what are the likely benefits of the AfCFTA by
order of importance. Majority consider Job creation, Diversification of economies, improved
regional value chains, technology, increased competitiveness, in the respective order.

How do you think AfCFTA will affect economic cooperation between African countries?

Another significant question posed by the research survey on AfCFTA’s effect on economic
cooperation. The responses give an interesting insight and nuanced perspective on the subject
of economic cooperation. This is what respondent No.10 had to say:

“It offers the opportunity for an integrative approach for Africa to harness its rich natural
resources to explore regional corporation.” (Respondent No.10) (AfCFTA SURVEY
QUESTIONNAIRE-2024). The respondent underscores the possibility of harnessing the
vast resources of the continent as a key factor, give its rich and diverse resource base in terms
of raw materials.

Whilst, respondent No.20 had the views below to say:

“The AfCFTA is likely to significantly enhance economic cooperation between African

countries by creating a unified market, which reduces trade barriers and fosters greater
economic integration. By eliminating tariffs on most goods, it will encourage intra-African
trade, allowing countries to access larger markets and diversify their exports. This
cooperation will promote regional supply chains, increase competitiveness, and stimulate
industrialization across the continent. Additionally, the AfCFTA is expected to improve
infrastructure development, streamline regulatory frameworks, and foster collaboration in
sectors like technology, manufacturing, and agriculture, leading to more resilient and
interconnected African economies. Ultimately, it will strengthen economic ties, reduce
dependence on external markets, and support sustainable development within Africa.”
(Respondent No.20) (AfCFTA SURVEY QUESTIONNAIRE-2024)

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Also, as had been mentioned earlier, projections from many institutions gives a positively
outlook for Africa’s trade potential, and this is succinctly captured in the views of respondent
No. 27, who referred to the following: “World Bank estimates show that the AFCFTA could
raise Africa’s export to the rest of the world by 32% by 2035 and catalyze foreign direct
investment, which is expected to increase by between 111% and 159% . AFCFTA has
brightened Africa trade and growth prospects.” (Respondent No.27) (AfCFTA SURVEY
QUESTIONNAIRE-2024).

This agreement prioritizes intra trading activities within the continent which drives the impacts
of economic stability and job creation in the continent. This partnership supports the expansion
of the African market and provides for the prioritization of economic growth within through
the creation of African made products for African market for a competitive market value.

What potential negative impacts, if any, do you foresee from increased inter-continental
trade under AfCFTA?

In terms of the negative impacts, the respondents also shared their fears or concerns regarding
the agreement, with one citing that: “Potential negative impacts of AfCFTA include unequal
benefits favouring more developed countries, loss of tariff revenue, local industries
struggling against stronger competition, worsening trade imbalances for some nations, and
challenges in harmonizing regulations across diverse economies. If not addressed, these
issues could hinder equitable growth under AfCFTA.” (Respondent No.20) (AfCFTA
SURVEY QUESTIONNAIRE-2024)

Respondent No.29 also shared an interesting concern, highlighting the following: “The initial
successive years will envisage external shocks from foreign investors, necessarily because
we do have a significant least developed economies with serious debt obligations. The issue
of the exploitation and commercializing our own oil and other minerals is influenced by
external factors. The impact of exchange rate volatility and the absence of a single currency
market which is envisaged to be doubtful”. (Respondent. No29) (AfCFTA SURVEY
QUESTIONNAIRE-2024) and one also sharing concerns on an Increased growth in labor
exploitation and illicit trade networks. (Respondent No.10).

Figure 2.9 (AfCFTA SURVEY QUESTIONNAIRE-2024)

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Despite the great vision embedded in the AfCFTA agreement, respondents are not entirely very
sure of the sufficiency of the current legal framework in promoting economic cooperation
among member states. This is seen in the data showing 35% saying they believe it to be
sufficient, whilst 26% believe it is not, and 39% are not too sure.

Conclusively, the data has a strong correlation with the objectives of the research and the
pertinent questions related to same. This presentation and analysis of the data gathered mainly
from surveys, and corroborated by relevant literature, underscores the viability and authenticity
of the study. Thus, in the follow up concluding chapter, the researcher shall give a detailed
summary of the findings of the study, along with recommendations, and conclusion study.

CHAPTER FIVE

SUMMRAY OF FINDINGS, RECOMMENDATIONS, AND CONCLUSION

INTRODUCTION

This chapter synthesizes the critical findings and analytical discourse presented throughout this
dissertation on the African Continental Free Trade Area's (AfCFTA) legal and regulatory
framework. The preceding chapters have systematically examined the intricate interplay
between regulatory mechanisms, trade facilitation protocols, and economic integration
initiatives that underpin the AfCFTA's ambitious mandate. Through a comprehensive analysis
of both primary and secondary data, this research has illustrated the complex dynamics of inter-
continental trade relations and the juridical foundations that support economic cooperation
among African member states. The study has particularly emphasized the pivotal role of
harmonized regulatory frameworks in fostering sustainable economic growth, while critically
assessing the challenges and opportunities inherent in implementing such a comprehensive
trade agreement across diverse legal jurisdictions. As this dissertation draws to a close, this
chapter consolidates the key theoretical contributions and empirical insights garnered from our
investigation, offering substantive recommendations for policy reformation and regulatory
enhancement. Furthermore, it articulates the implications of these findings for future research
trajectories in African trade law and economic integration studies, while acknowledging the
limitations encountered during the research process. This conclusive analysis serves to
reinforce the significance of robust legal frameworks in advancing Africa's economic
integration agenda.
Page 62 of 76
SUMMARY OF FINDINGS

In the words of Egyptian President Abdel Fattah al-Sisi, who was AU Chairperson in 2019,
“The success of the AfCFTA will be the real test to achieve the economic growth that will turn
our people’s dream of welfare and quality of life into a reality”- Abdel Fattah al-Sisi, President
of Egypt and AU Chairperson (2019).

This research, being a combination of both qualitative and quantitative analysis, has shown the
relational issues of law in economic integration efforts that have been approached in Africa in
its promotion of the AfCFTA agreement, whilst underscoring the nuances of its diversity of
laws and nations, by exploring a thorough legal perspective of the challenges that face the
implementation of the AfCFTA, to show the need for clear and systematic interactions between
national, regional and continental institutions, to ensure the effective realisation of the goals
and objectives set out in the Agreement. The most important being the smooth establishment
and operation of the FTA, allowing it transition into a Customs Union and Common Market,
as well as the objective to improve the lives and welfare of the people of Africa in accordance
with the AU Agenda 2063 aspirations.lxviii

While there are a conundrum of political and socio-economic challenges that plague Africa’s
economic integration efforts; even if these were all addressed and overcome, there would
remain obstacles to be overcome in the realm of law. Left undressed, these legal challenges
will continue to hinder the success and effectiveness of continued regional and the aspiring
continental economic integration agreements. The analysis put forward in the preceding
chapters illustrate the overall hypothesis that economic communities must have well-structured
and well managed legal relations between itself, and other legal systems as a necessary
condition for their effectiveness.

Of the many challenges facing the implementation of the AfCFTA, two where considered in
depth: (1) The conflict of laws and legal obligations because of the overlapping membership
of State Parties in multiple RECs; and (2) The establishment of an independent and effective
dispute resolution system to ensure the realisation of the goals set out in the Agreement. The
recommendations for each of these will be discussed in subsequent paragraphs.

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RECOMMENDATIONS

Overcoming Conflict of Laws and Legal Obligations arising from Overlapping

Membership Of State Parties In Multiple Recs

Chapter II highlighted that two of the major obstacles that arise from overlapping membership
of State Parties to multiple RECs are the potential conflict of laws and free riding. The AfCFTA
attempts to address these issues through the supremacy clause in Article 19 and the MFN
clauses made pursuant to the principle of reciprocity as per Article 18 of the Agreement
respectively. While these provisions address the challenges at hand, they are too themselves
create uncertainties as to how the legal instruments of the eight recognised RECs will be
coordinated and harmonized pursuant to the smooth operations of the envisioned FTA, and the
eventual creation of a continental customs union. As highlighted in the chapter, members of
COMESA, EAC, SADC for example would be able to invoke Article 19(2) of the AfCFTA to
benefit from the established more favourable common tariffs or other trade facilitation
measures under the REC as these would have already achieved the higher levels of economic
integration than the AfCFTA by July 2020, even if these are in direct conflict with their
obligations under the Agreement. Likewise, the application of a strictly reciprocal MFN
obligation runs the risk of creating classes of members within the AfCFTA; with capacity
disparity throughout the continent limiting the extent to which the smaller or weaker State
Parties (e.g. Burundi or Djibouti) would be able to reciprocate the favourable treatment offered
by the economically stronger states (e.g. South Africa or Kenya). This means not all State
Parties would readily benefit from the Agreement and third parties outside of the FTA could
experience better preferential treatment than those who have signed and ratified AfCFTA. lxix

To overcome these challenges, it is necessary that national, regional and the AfCFTA
institutions work together under coordinated legal frameworks to ensure that the top-down
approach to continental integration is effective. This would require that the supranational
authority AfCFTA institutions be recognised, respected utilised by the State Parties. UNECA
has identified the absence of supranational authority to enforce the commonly agreed policies
of communities as a principle weakness of African RECs. While a number of provisions and
principles in the RECs’ treaties support a claim that they are founded in a supranational vision,
in practice States have failed to respect or empower these bodies with the necessary level of
support to ensure their effectiveness. This is seen in the lack of national legislation to support
the envisioned trade facilitation and other investment programmes and protocols put forward,
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as well as the apparent dysfunction between the national bodies responsible for executing the
obligations set out the treaties. For example, in Zimbabwe, the Investment and Development
Agency Bill and the draft AfCFTA Implementation Bill although having reached Parliament
for discussion, have remained only partly processed for over a year. Failure to readily
incorporate international law into domestic legislation gives leeway for states to be non-
compliant with the Agreements and creates room for the confusion of the spaghetti bowl effect
to take root, making trade in and with Africa a complicated and inefficient process. Therefore,
it is necessary that the supranational powers granted to the Assembly under Article 10 and the
Council of Ministers under Article 11(5) of the Agreement be complimented by State Parties
through the creation of national legal frameworks aimed at ensuring the effective operation of
the AfCFTA. As noted, within the AfCFTA political institutions, it is necessary that the
technical organs created under the ministerial conference be given some law-making authority.
Such would allow for the continual development of the legal framework, considering the
technical functions of the RECs while successive trade liberalization negotiations continue
between the State Parties, rather than depending on the bi-annual political processes to
eventually amount to law- slowing down the pace of implementation and desired progression
through the linear market integration phases.

Establishing An Independent and Effective Dispute Settlement Mechanism To Ensure

The Realisation Of The Goals Set Out In The AfCFTA

In Chapter II also, it was highlighted that relational issues of law become more evident as
economic integration progresses. The deeper the level of integration, the greater the demands
made by the community on member states become. A significant demand made by parties to
an economic integration agreement is the cession of some sovereignty and national policy space
to ensure the effective establishment and envisioned operation of the agreement. This is of great
necessity to ensure the independent and effective functioning of the DSM established pursuant
to the Agreement.

The AfCFTA pursues a very high level of economic integration. As such, it has implemented a
judicial DSM, akin to that of the WTO DSU. The AfCFTA DSM is thus very demanding of
states and requiring them to actively participate in the dispute settlement process and readily
adhere to rulings handed down. Uncharacteristic to the DSMs created under RECs, the AfCFTA
has strict surveillance for compliance with rulings, and allows for complainant State Parties to
apply retaliatory measures in the event of non-compliance by the offending state of the ruling.
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Considering Africa’s marred history of international dispute settlement within RECs, lack of
participation in the WTO DSU and no previous instances of trade-related state-to-state dispute
settlement, it is surprising that the State Parties to AfCFTA have chosen to jump into the deep-
end of dispute settlement, by implementing such an intricate and demanding mechanism.
However, because of the desired levels of integration, in establishing the AfCFTA DSM, State
Parties are acknowledging the need to embrace judicial forms of dispute settlement, ceding
some highly valued sovereignty in the determination trade- related matters, to ensure the
tangible realisation of the goals set out in the Agreement. This in the pursuit of increasing
Africa’s share in global trade, boosting intra-African trade, all in an effort to, improve the lives
and welfare of the people of Africa.

Thus, while scepticism surrounding whether or not State Parties will allow the AfCFTA DSM
operated as provided from in the Agreement is warranted, there are also reasons to believe that
State Parties do intend to comply with this part of the Agreement. As noted, the swiftness with
which the AfCFTA has been negotiated, signed, ratified and entered the operational stage is
unprecedent in Africa. This could be indicative of the State Parties’ intention to ensure
functioning of the Agreement in establishing a fully operation FTA

where goods, services, labour and capital are able to circulate freely throughout the continent;
as well as respecting and upholding the authority of the DSM.

Likewise, in the aftermath of the dissolution of the SADC Tribunal following the adverse
judgment against Zimbabwe in the Mike Campbell case, the South African Constitutional
Court recently ruled that the South African government’s decision to support the suspension of
the Tribunal was unconstitutional, unlawful and irrational.lxx Invoking international law as well
as the South African Constitution in support of its ruling, it found that the amendment
procedures applicable to the SADC Protocol had been violated, and that the President of South
Africa lacked the authority to sign away the fundamental right of access to justice (by
abolishing the possibility investor-state dispute settlement at a regional level) provided in the
South African Constitution. The High Court of Tanzania ruled on the same matter, highlighting
the importance of the adherence to the rule of law at an international level and that the absence
of a functional Tribunal places the legitimacy of SADC as a community and international
personality in jeopardy. As such, the government of Tanzania has been advised to review its
position on the dissolution of the SADC Tribunal.

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Dispute settlement systems play a key role in international economic integration. An active,
independent, efficient, and reliable DSM is essential to not only settling disputes between the
state parties in upholding a rules-based regime; but also, critical to developing relevant
jurisprudence that will guide the single market economy objective of the constituent trade
agreement. In the AfCFTA context, the DSM will also be important for the purpose of
interpreting areas of overlap or conflict with other former judicial orders in Africa. 18 Article
20 of the AfCFTA establishes the DSM. The DSM shall be administered in accordance with
the Protocol on Rules and Procedures on the Settlement of Disputes (“Dispute Protocol”). The
Dispute Protocol establishes a Dispute Settlement Body (DSB) and provides for the settlement
of dispute in a transparent, accountable, fair, and predictable way that is consistent with the
provisions of the establishing agreement.19 The DSB that will comprise of the representatives
of the AfCFTA State Parties. The DSB shall have a Chairperson to be elected by the State
Parties. The DSB has authority to establish Dispute Settlement Panels and an Appellate Body;
adopt Panel and Appellate body reports, maintain surveillance of implementation of the rulings
and recommendations of the Panels and the Appellate Body; and authorize the suspension of
concessions and other obligations under the Agreement. Decisions to be taken by the DSB shall
be by consensus. The Chairperson of the DSB shall be elected by the State Parties and will
meet as often as necessary to discharge its functions. The procedure for the settlement of
disputes under the AfCFTA consists of Consultations; Good Offices, Conciliation or
Mediation; Panels; and an Appellate Body. Disputing parties can explore arbitration at first
instance as a means to settling their disputes. The Dispute Protocol applies to disputes between
State Parties relating to their right and obligations thereunder, subject to such special and
additional rules and procedures on dispute settlement contained in the AfCFTA. To guard
against forum shopping, where a State Party has initiated a proceeding under the Dispute
Protocol regarding a specific matter, the State Party shall not invoke another forum for dispute
settlement on the same matter.lxxi

Enhancing the AfCFTA's dispute resolution framework is essential for building confidence in
the agreement and ensuring its effective implementation. Strategies include:

1. Strengthening the AfCFTA Dispute Settlement Body: Provide adequate resources,

training, and support to ensure the body can handle complex trade disputes effectively.

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 2. Establishing an Appellate Body: Create an appellate mechanism to review decisions of
dispute settlement panels, ensuring consistency and predictability in the interpretation
of AfCFTA provisions.

3. Promoting alternative dispute resolution (ADR) mechanisms: Encourage the use of

mediation and arbitration as alternatives to formal litigation, particularly for smaller
disputes or those involving SMEs.

4. Developing a body of AfCFTA jurisprudence: Publish dispute settlement decisions and

create a searchable database to help build a coherent body of AfCFTA case law.

5. Capacity building for member states: Provide training and technical assistance to
member states on effectively using the dispute settlement mechanism and preparing for
potential disputes.

Further, from the results of the data obtained from the research survey, additional
recommendations are articulated as thus:

Exploring Strategies for Strengthening the Legal and Regulatory Ecosystem

To overcome the challenges mentioned above and create a more robust legal and regulatory
framework for the AfCFTA, several key strategies should be pursued:

Harmonization of Laws and Regulations

Harmonizing laws and regulations across AfCFTA member states is crucial for creating a
predictable and consistent business environment. This can be achieved through the
development of model laws: The AfCFTA Secretariat should develop model laws in key areas
such as customs procedures, investment, competition, and intellectual property rights. These
model laws can serve as templates for member states to adopt or adapt to their national contexts,
by benchmarking successful legal frameworks from other regional integration initiatives (e.g.,
the European Union or ASEAN) can be studied and adapted to the African context. Ensuring a
gradual harmonization effort should focus initially on critical areas that directly impact trade,
such as customs procedures and technical standards, without causing unnecessary disruptions
to development and economic development efforts. Capacity building for legal professionals:
Training programs should be established to enhance the capacity of legal professionals, judges,
and regulators in interpreting and applying harmonized laws and regulations. Given the
constant dynamism of market structures and widespread unpredictability of business

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ecosystems, there must be in place flexible mechanism to mitigate the harshness of such
changes, such as was experienced during the Covid-19 pandemic, which adversely affected
economies the world over and causing massive disruptions in trade across many regions. To
avoid such inconveniences and ameliorate the severity of its consequences, regular review of
legal frameworks and adoption of future-proof regulatory mechanisms will be crucial to
sustaining a balanced between the AfCFTA’s strategic vision, in line with realistic objectives
and challenges posed by geopolitical and socioeconomic disruptions. The Secretariat should
establish a system for periodic review and update of harmonized laws to ensure they remain
relevant and effective in the face of changing economic and technological landscapes.

Intellectual Property Rights Protection

A robust intellectual property (IP) rights regime is crucial for fostering innovation, attracting
investment, and promoting technology transfer. Strategies to strengthen IP protection under the
AfCFTA include:

1. Expediting the finalization of the Protocol on Intellectual Property Rights: Prioritize

the completion and adoption of this protocol to provide a comprehensive framework
for IP protection across the continent.

2. Harmonizing IP laws and registration procedures: Develop common standards and

procedures for IP registration and protection across member states.

3. Establishing a Pan-African IP Office: Create a centralized body to coordinate IP

policies, manage registrations, and provide technical assistance to member states.

4. Enhancing enforcement mechanisms: Develop guidelines and best practices for IP

enforcement, including measures to combat counterfeiting and piracy.

5. Promoting awareness and education: Implement programs to raise awareness about IP

rights among businesses, innovators, and the general public.

Competition Law and Policy

A well-functioning competition regime is essential for preventing anti-competitive practices

and ensuring a level playing field for businesses. Strategies include:

1. Finalizing the Protocol on Competition Policy: Expedite the completion and adoption
of this protocol to provide a comprehensive framework for competition policy across
the AfCFTA.
Page 69 of 76
 2. Establishing a Continental Competition Authority: Create a supranational body to
oversee competition issues that have a cross-border impact within the AfCFTA.

3. Harmonizing national competition laws: Develop guidelines for member states to

align their national competition laws with AfCFTA principles and best practices.

4. Capacity building for national competition authorities: Provide training and technical
assistance to strengthen the capacity of national competition authorities to investigate
and enforce competition rules.

5. Promoting cooperation among competition authorities: Establish mechanisms for

information sharing and cooperation among national and regional competition
authorities to address cross-border anti-competitive practices effectively.

Digital Trade and E-commerce Regulations

As digital trade becomes increasingly important, the AfCFTA needs to develop a

comprehensive framework to govern e-commerce and digital transactions. Strategies include:

1. Developing an AfCFTA E-commerce Protocol: Create a dedicated protocol to address

issues such as digital signatures, online consumer protection, data protection, and
cross-border data flows.

2. Harmonizing cybersecurity laws: Develop common standards and guidelines for

cybersecurity to build trust in digital transactions across the continent.

3. Promoting interoperability of digital systems: Encourage the adoption of common

technical standards to facilitate seamless digital transactions across borders.

4. Addressing digital taxation: Develop a framework for fair and efficient taxation of
digital transactions within the AfCFTA.

5. Building digital infrastructure: Encourage investment in digital infrastructure,

including broadband networks and data centers, to support the growth of digital trade.

Investment Facilitation and Protection

Creating a predictable and secure investment environment is crucial for attracting both intra-
African and foreign direct investment. Strategies include:

Page 70 of 76
 1. Finalizing the Protocol on Investment: Expedite the completion and adoption of this
protocol to provide a comprehensive framework for investment protection and
facilitation across the AfCFTA.

2. Harmonizing investment laws and regulations: Develop guidelines for member states
to align their national investment laws with AfCFTA principles and international best
practices.

3. Establishing a Pan-African Investment Agency: Create a centralized body to promote

investment opportunities, provide information to investors, and coordinate investment
policies across member states.

4. Developing an investor-state dispute settlement mechanism: Create a fair and

transparent system for resolving disputes between investors and host states, while also
promoting alternative dispute resolution methods.

5. Promoting investment in sustainable development: Develop guidelines and incentives

to encourage responsible investment that contributes to sustainable development goals.

Environmental and Labor Standards

Integrating environmental and labor standards into the AfCFTA framework is essential for
promoting sustainable and inclusive economic growth. Strategies include:

1. Developing protocols on environmental protection and labor standards: Create

dedicated protocols to address issues such as environmental conservation, climate
change mitigation, and workers' rights.

2. Harmonizing environmental and labor laws: Develop guidelines for member states to
align their national laws with AfCFTA principles and international standards.

3. Establishing monitoring and enforcement mechanisms: Create systems to monitor

compliance with environmental and labor standards and enforce violations.

4. Promoting green trade and investment: Develop incentives and guidelines to

encourage environmentally friendly trade and investment practices.

5. Capacity building for labor and environmental authorities: Provide training and
technical assistance to enhance the capacity of national authorities to implement and
enforce environmental and labor standards.
Page 71 of 76
Implementation and Enforcement Mechanisms

To ensure the effective implementation and enforcement of the strengthened legal and
regulatory framework, the following mechanisms should be considered:

1. National implementation committees: Establish dedicated committees in each member

state to oversee the domestication and implementation of AfCFTA provisions.

2. Regular compliance assessments: Conduct periodic reviews of member states'

compliance with AfCFTA obligations and provide recommendations for improvement.

3. Peer review mechanism: Implement a system of peer review among member states to
promote accountability and share best practices in implementation.

4. Sanctions for non-compliance: Develop a graduated system of sanctions for persistent

non-compliance with AfCFTA obligations, balanced with positive incentives for
compliance.

5. Technical assistance programs: Provide targeted technical assistance to member states

facing challenges in implementing specific aspects of the AfCFTA.

6. Public-private dialogue: Establish platforms for regular dialogue between government

officials, private sector representatives, and civil society to identify implementation
challenges and propose solutions.

7. Digital monitoring tools: Develop digital platforms to track implementation progress,

share information, and facilitate reporting on non-compliance issues.

CONCLUSION

The AfCFTA is indeed an ambitious project undertaken my members of the AU. Whether yet
another trade agreement aimed towards full continental economic integration will yield better
results is still to be seen. However, in the interim, acknowledgement must be made of the
consistent of the State Parties engagement with the Agreement on continental, regional and
national levels. As noted, the pace at which states have negotiated, signed and ratified the
Agreement is unprecedented in the continent, and reflects a high level of commitment to the
realisation of the Pan-African vision of a completely politically and economically independent
Africa.

Page 72 of 76
While the establishment of the AfCFTA has momentous and admirable feet, the challenges
surrounding its implementation could easily undermine historic efforts. The primary concern
is whether all 54 State Parties will fully support the enforcement of the AfCFTA exactly as
envisioned in the Protocols and annexes. The ultimate test will indeed be the enforcement ofe
powers conferred to the political and DSM organs of the AfCFTA- reflecting the State Parties’
commitment to the realisation of its vision, beyond political rhetoric of support. Though
Oppong suggests that ensure full support and compliance, non-complying states should be
threatened with expulsion. It must be noted that:

“The vision of an African Economic Community should not be founded on the ideal of all
African countries as members. The EU does not consist of all states in Europe. The [USMCA]
does not include all countries on the North American continent. And the WTO does not
comprise of all the countries of the world. There is no legitimate reason why an African
Economic Community cannot consist of something less than all of Africa! For a continent
consisting of 53 states, few of the dysfunctional, collapsed or collapsing, many with different
levels of socio-economic, legal, and political development, the pursuit of this ideal will delay,
indeed thwart, the timely realisation of a noble economic vision”.

As such, while such exclusion would ensure efficiency in the regional integration process, it
would also stand to have a very negative impact on the political and social relations between
States. The noted non-economic benefits of these agreements cannot be undermined.

As illustrated in the introductory chapter, full implementation of the AfCFTA will not only
benefit the economies of participating states but will improve the lives and welfare of African
people. While an increase in GDP, structural change, improved trade facilitation and other
indicators of economic development may be the most prominent indicators of the success of
the AfCFTA, the true success of the Agreement will be the contributions this economic
integration effort has made to poverty eradication, decreasing youth unemployment rates and
the increased access to basic resources for African peoples. Therefore, to ensure the meaningful
realisation of the vision of AfCFTA and the effective enforcement of obligations under the
agreement, effective legal frameworks must be established. These must clearly define the
relationship between the organs of the AfCFTA, the regional and national bodies responsible
for facilitating trade, investment, competition, and intellectual property rights.

Page 73 of 76
ENDNOTES

i
https://au.int/en/african-continental-free-trade-area
ii
Babatunde Fagbayibo, ‘The African Continental Free Trade Area (AfCFTA) and the imperative of democratic legitimacy: An analysis’
(2020) (Forthcoming in the Nigerian Yearbook of International Law)

iii
African Union (2012) ‘Assembly of the Union: Eighteen ordinary session 29-30 January 2012 Addis Ababa, Ethiopia’ <
https://au.int/sites/default/files/decisions/9649-assembly_au_dec_391_- _415_xviii_e.pdf> Also cited in Fagbayibo
iv
Generally, see Fagbayibo (n 1); African Union (2012) ‘BIAT – Boosting Intra-African Trade. African Union’
https://au.int/en/ti/biat/about .
v
AU Ibid.
vi
AU ibid. (n.3)
vii
United Nations Economic Commission for Africa and the African Union Commission (2018) ‘African Continental Free Trade Area
Questions & answers’ https://www.uneca.org/publications/african-continental-free-trade-area

viii
Fagbayibo (n 1); UNECA and AUC ibid
ix
UNECA and AUC (n 6).

x
Tralac website ‘African Continental Free Trade Area (AfCFTA) Legal Texts and Policy Documents’
https://www.tralac.org/resources/our-resources/6730-continental-free-trade-area-cfta.html#legal-texts
xi
African Continental Free Trade Area – Questions & Answers, United Nations Economic Commission of Africa (UNECA) (2019)
https://www.uneca.org/publications/african-continental-free-trade-area-questions-answers accessed 30 October 2024.
xii
ibid
xiii
AfCFTA Website ‘About AfCFTA’ https://www.africancfta.org/aboutus accessed 30 September 2024
xiv
Ibid
xv
Tralac website (n 9).
xvi
Generally, see James Gathii, ‘Agreement Establishing the African Continental Free Trade Area’ 58(5) (2019) International Legal
Materials 1028.

xvii
Tralac (n 9).
xviii
Tralac (n 9).
xix
Tralac (n 9).
xx
Gathii (n 15).
xxi
Gathii ibid 1028
xxii
Franklin Obeng‐Odoom, ‘The African Continental Free Trade Area." American Journal of Economics and Sociology 79.1 (2020): 167-19,
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xxiii
Generally, Olufemi Amao, African Union Law: The Emergence of a Sui Generis Legal Order (Routledge, 2018)
xxiv
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xxv
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xxvi
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xxviii
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xxx
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xxxi
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xxxii
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xxxv
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xxxvi
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Leveraging Trade and Foreign Direct Investment to Boost Growth and Reduce Poverty. © Washington, DC: World
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xxxvii
TRALAC Daily News Selection (2019)
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xxxviii
Agreement Establishing the AfCFTA Article 5(a).
xxxix
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xl
Olabisi D. Akinkugbe; Dispute Settlement under the African Continental F Dispute Settlement under the African Continental Free
Trade Area
xli
ibid
xlii
Akinkugbe, O. D. (2019). “Dispute Settlement under the African Continental Free Trade Area Agreement: A Preliminary
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xliii
Oppong, R. F. (2019). “Legal Aspects of Economic Integration in Africa.” Cambridge University Press, pp. 45-67.
xliv
Akinkugbe, O. D. (2019). “Dispute Settlement under the African Continental Free Trade Area Agreement: A Preliminary
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xlvxlv
APRI (2023). The Road to Africa’s Single Market: Progress so far and challenges for the future. Africa Policy Research Institute,
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xlvi
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xlviixlvii
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xlviii
Manfred Kouty; Boosting the intra-African digital trade in the AfCFTA context: does regulatory framework matter?
xlixxlix
Mesut Saygili Ralf Peters Christian Knebel Division on International Trade in Goods and Services, and Commodities, UNCTAD;
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liii
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Perspective on International Trade Law
liv
Agreement Establishing the AfCFTA Article 5(a).
lv
Article 2(1)(a) of the Vienna Convention on the Law of Treaties (VCLT) of 1969 defines a ‘treaty’ as: “An international agreement
concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation”.

lvi
Dirk Willem te Velde, Derrick Abudu, Prachi Agarwal and Max Mendez-Parra “AfCFTA National Implementation Committees:
Scoping options and support mechanisms”. ODI REPORT 2023.

lvii
United Nations Economic Commission for Africa. (2023). The AfCFTA – What You Need to Know: Frequently Asked Questions &
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lviii
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lix
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lx
Mats Alvesson, Kaj Sköldberg · Reflexive Methodology New Vistas for Qualitative Research 2009
lxi
Rosaline Barbour Introducing Qualitative Research A Student′s Guide 2013

lxii
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lxiii
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lxiv
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lxv
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lxvi
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lxvii
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Oppong, RF. Legal Aspects of Economic Integration in Africa (2011) Cambridge University Press, p.
lxviii

lxix
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lxx
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lxxi Olabisi D. Akinkugbe, “What the African Continental Free trade Agreement Protocol on Dispute
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