In my inaugural column on the African Continental Free Trade Area (the “AfCFTA”), I had opined that the regime of Trade in Goods appears to be gradually taking shape (though not yet at an appreciable level), particularly with the commencement of trading in January this year, and that the progressive framework for the negotiations of specific commitments by the member-states in the area of Trade in Services, is meant to afford Nigeria (and other AfCFTA member States) the platform to ensure that the service sectors benefit from the huge opportunities provided under the AfCFTA.
Suffice to say that pending the conclusion of the Schedule of Specific Commitment on Trade in Services, intra-African trade in services will be guided by the existing principles such as the WTO Most-Favoured Nation rules or as provided for by specific Regional Economic Community (REC) arrangements.
The Phase II Negotiation will therefore complement the efforts already recorded in the areas of Tariff Concession and the Rules of Origin for trade in goods. In the world of knowledge and service economy, both trade in goods and services must co-exist in order for Africa to harness the gains and objectives of the AfCFTA.
The ongoing negotiations provide a platform for trade experts and stakeholders to make contributions in order to enrich Nigeria’s Schedule of specific commitments. It may be recalled that Nigeria deposited her instrument of ratification on December 5, 2020, becoming the 34th country to ratify the AfCFTA treaty.
Based on the latest update, 36 countries have so far ratified the Agreement with the last two being Malawi that ratified on January 15, 2021, and Zambia that ratified on February 5, 2021.
Phase II negotiation covers the (i) Protocol on Intellectual Property Rights; (ii) Protocol on Competition Policy and (iii) Protocol on Sustainable Investment. The Protocol on eCommerce dovetails into the Phase III negotiation.
The Nigerian Office for Trade Negotiations (“NOTN”) has called on the public including the private and public stakeholders, the academia, policymakers, trade experts, legislators, jurists, trade practitioners, women groups, trade unions, professional bodies to submit memoranda and position papers in relation to their views, opinions, constituents of Nigeria’s AfCFTA Phase II negotiation priorities and positions.
NOTN is an agency of the Federal Government of Nigeria responsible for leading, managing and coordinating all trades and trade-related negotiations on behalf of Nigeria. Submissions of memoranda and position papers shall commence from the 29th March 2021 and run till the 30th of April 2021, As noted in the information circular signed by the Acting Chief Trade Negotiator/Director General of NOTN, Victor Liman, which was made available on NOTN’s Twitter page, the public and stakeholders are urged to adhere strictly to the submissions and resubmissions deadline. Submissions can be sent to NOTN Contact Address or mailed to [email protected]
The above call has provided opportunities to the various professional bodies such as the Nigerian Bar Association (“NBA”) to galvanize its intellectual powerhouse and ensure that the profession is not left behind as most of the areas under consideration impact on legal practice in Nigeria. The NBA Section on Business Law through its various committees on International Trade Law, Consumer Protection and Competition Law, Information Communication and Technology, Intellectual Property.
Taxation and the Committee on Media Law is urged to utilized this opportunity to collate members’ views and send across to the NOTN. Other stakeholders such as the Intellectual Property Law Association of Nigeria should equally take note and do the needful. Intellectual Property right has been the subject of constant discussion in Nigeria with critics blaming the government for not putting in place effective enforcement mechanism for the protection of IP rights in Nigeria. With the expanded market provided under the AfCFTA, proper coordination and synergy amongst the member States is required.
The Federal Competition and Consumer Protection Act (“FCCPA”), 2018 has led to some tractions in development of competition law in Nigeria, which hitherto had only enjoyed lip-service with only sector-specific legislations that cater to few sectors such as telecommunication and mining.
The Investment Protocol on its part should be negotiated with a view to advancing the movement of capital and natural persons as well as to make intra-Africa investment climate conducive by eliminating non-tariff barriers to investments such as excessive bureaucracy; lack of transparency and disclosure of investment-related information; inefficiency and corruption; multiplicity of investment laws and taxes.
Some commentators have even suggested the adoption of the Organization for the Harmonization of Business Laws in Africa (OHADA) model for the AfCFTA in order to improve the investment climate in Africa as investors would naturally prefer jurisdictions where the legal system is effective, efficient and investment-friendly.
Lastly, the information circular indicated that comments will be accepted in respect of eCommerce which has been integrated into the 3rd phase of the negotiation. e-Commerce captures commercial transactions or production, distribution, marketing, sale or delivery of goods and services occurring through electronic channels.
The exponential growth and expansion of eCommerce on the continent, (from 260 e-commerce startups in 2017 to over 630 in 2020), AfCFTA member-states need to address the issues of data localisation, cross-border data flows, consumer protection, information protection, prohibition of customs duties, promotion of e-commerce, most-favoured-nation treatment, taxation amongst others.
The recent Flutterwave becoming a unicorn after raising $170 million which shot its valuation above $1 billion, clearly demonstrates the huge potential in the tech and eCommerce space within the continent. The stakeholders should seize the opportunity provided by the ongoing negotiations and make their inputs. Relatedly, the NOTN is urged to ensure that the final product of the negotiation reflects the inputs of stakeholders and experts.