The African Continental Free Trade Area Agreement (AfCFTA) – One year After – A Fresh Air of Optimism in 2022?

On the 1st of January 2021, continental trade between African countries significantly changed with the official commencement of the African Continental Free Trade Area Agreement (AfCFTA).

The AfCTA was an initiative that had been in the pipeline since 2012, with five years of negotiations and other logistic planning, which finally crystallised on March 21, 2018, after 44 African countries signed the pact at an AU extraordinary summit in Kigali, Rwanda. Shortly after, 10 more countries, including Nigeria, added their signatures, and the operational phase of the AfCFTA was marked to kick off by mid-2020. However, the covid-19 pandemic threw a cog in these projections, leading to a delay in starting operations until 1 January 2021, when the AfCFTA officially kicked off.

African countries have not been able to scale up their economic activities due to a variety of reasons exacerbated by the conflicts in the 7 different regional trading blocs currently in operation, hence the need for a deeply integrated and outwardly united front from which to achieve the cohesion needed to boost the scale of economic activity in Africa. This considered, the AfCFTA is aimed at creating the world’s largest free trade area; one that integrates 1.3 billion people across 54 countries.

As at December 2021, 41 out of 54 signatory countries have ratified the treaty, making the AfCFTA the fastest instrument in the African Union to be ratified. The ratification is significant as it signals the increasing interest of the State parties. The fact that the top 4 economic powers and richest countries on the continent, Nigeria, South Africa, Egypt, Algeria have ratified the trade agreement is clearly also significant.

The year 2021 also saw the roll-out of the pilot phase of the Pan-African Settlement System (PAPSS), a combined initiative of African Export-Import Bank (AFREXIM) and the AfCFTA, which was formerly launched in Ghana on 13 Jan 2022. The PAPSS serves as the continent-wide platform for the processing, clearing and settling of intra-African trades and commerce payments. The system was developed by the AFREXIM and promises to reduce the cost and time of payments, lower the level of banking liquidity required to make payments, and improve central bank oversight of payments.

The full implementation of PAPSS is expected to save the continent more than US$5 Billion in payment transaction costs each year.

Given the interests generated by the AfCFTA and the potentials it holds for established businesses, start-ups and SMEs, it is expected that 2022 will provide another opportunity for the State Parties to make significant progress.

According to the UN Conference on Trade and Development – UNCTAD’s Economic Development in Africa Report 2021, the total untapped export potential of intra-African trade is around $21.9 billion, equivalent to 43 per cent of intra-African exports (yearly average for 2015–2019), with an additional $9.2 billion projected through partial tariff liberalization under the AfCFTA over the next five years. This statistic highlights the ultra-low level of intra-African trade when compared with that of countries in other continents, and in particular reflects Africa’s unenviable position as an exporter of raw materials to the rest of the world.

 

Optimism v Action

After the optimism that greeted the official launch of the AfCTA, one year after the launch, trade restrictions between African countries still abound. Although the pandemic may have had some effect on the AfCFTA’s integration goals, the reluctance of African leaders to open up borders and liberalising trade remains a major impediment.

AfCFTA had projected that the phase II negotiations consisting of the underlisted would be finalised and ratified by the end of 2021, namely:

  1. Trade in goods and services,
  2. Intellectual property rights
  3. Investment and competition policy, and
  4. E-commerce

The AfCFTA projections above have not been fulfilled and there are still many loopholes in negotiations that were not finalised in 2021 among member countries. There is still a feeling of uncertainty concerning where countries stand on the agreement— an uncertainty that has affected the AfCFTA’s implementation.

The abovementioned phase II negotiations and the general framework for trade in services appears to have taken a back seat pending the conclusion of the negotiations on rules of origin.

The following are the three key challenges:

  1. With African countries favouring protectionist policies in their African trade outlook, there is some unwillingness by State parties to ratify all the articles of the agreement exemplified by the prolonged negotiations on phase I consisting of rules of origin. Many African countries are still holding out on ratifying some of the phases of the AfCFTA. These countries, who make most of their revenue from exports to non-African countries, are yet to be convinced of the benefits that the AfCFTA to their economies.
  2. A lack of a manual of information for African businesses about the AfCTA regarding the ways to take advantage of it, and a substantial percentage of African businesses are still unaware of its terms (particularly the tariff arrangements). Until businesses are aware, the costs of trading under AfCFTA will remain high.
  3. A lack of customs infrastructure and policy to be able to complement the AfCFTA’s customs and tariff obligations (only three countries in the AfCFTA so far have the infrastructural and systemic customs capabilities on par with AfCFTA benchmarks), as well as a lack of capacity in the AfCFTA’s Secretariat to push the integration agenda, given its launch in the middle of the pandemic.

 

Private Sector Initiatives

Reports suggest that the AfCFTA enjoys wide acceptance and heightened interest amongst the young African entrepreneurs and SMEs who are ready to explore the potentials that a larger African market presents.

Private sector start-ups have notwithstanding the delays of States parties sought to integrate African trade with start-ups offering services for company formation and compliance across Africa’s 54 countries and others offering a single digital infrastructure for businesses to start, scale and operate in every African country efficiently.

More traditional companies namely, two of Africa’s major logistics companies, Ethiopian Airlines Group and A-E Trade Group, signed a MoU to establish the East African smart logistics and fulfilment hub, committed to the establishment of a business relationship to provide end-to-end logistics solutions across Africa. Also, some AfCFTA-focused organisations like the AfCFTA Young Entrepreneurs Foundation (AfYEF) – have been formed. This and many other intra-African private partnerships and agreements show that the private sector has been more enthusiastic about the AfCFTA than African governments so far.

 

Expectations in 2022

The priorities for the implementation of the AfCFTA regime is for the finalisation of negotiations such that the following are agreed upon:

  1. Member States should ensure the attainment of at least 90% attainment of the Rules of Origin. The Rules if properly crafted remain the building blocks for the industrialization of Africa through increase in local production and cross-border value chains. There are over 6000 tariff lines under the HS Code system and the AfCFTA ambition is to liberalize over 90% of them. The AfCFTA Rules of Origin would require that only made in Africa goods will benefit from the tariff concession. However, measures must be put in place to prevent its abuse as non-compliance will turn the member countries into dumping grounds and lead to significant job losses and displacements of workers in key sectors such as agriculture and manufacturing.
  2. Addressing non-tariff barriers in order to harmonised customs interconnectivity system and transit procedures across the major trade corridors in Africa.  For example, the Abidjan to Lagos trade route/corridor deserves special attention in view of its significance to the ECOWAS region. The non-tariff barriers inhibiting intra-trades across the Regional Economic Communities (RECs) should also be addressed.
  3. Providing access to private businesses and individuals of general information about AfCTA particularly about progress in Phases 1 & 2 negotiations.

Nigeria’s Suppression of Piracy and Other Maritime Offences Act (2019) and the Deep Blue Project (2021)

Nigeria’s Suppression of Piracy and Other Maritime Offences Act2019  and the Deep Blue Project aim to ‘prevent and suppress piracy, armed robbery’ and any other unlawful act against a ship, aircraft and any other maritime craft, including fixed and floating platforms.

As Nigeria gets set to deploy the Deep Blue Project to protect its coastal waters, the Nigerian Maritime Administration and Safety Agency (NIMASA) says “piracy will no longer be allowed to thrive”.

The combined effect of these two initiatives is to halt the rising trend of piracy and other illegal acts against maritime traffic. The objective being to enhance the flow of maritime activity in Nigerian waters and the Gulf of Guinea.

 

Nigeria’s Suppression of Piracy and Other Maritime Offences Act, 2019

The Suppression of Piracy and Other Maritime Offences Act 2019 (SPOMO) gives effect to the relevant provisions of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (SUA) The SUA convention was adopted on 10 March 1988 and entered into force on 1 March 1992. Nigeria ratified his convention.

SPOMO has ended the controversy around whether the crime of sea piracy is defined in any local legislation. The Federal High Court has exclusive jurisdiction to determine matters of armed robbery and other unlawful acts at sea.

Without clear domestic statutes, the prosecution of parties suspected of sea piracy, prior to the law’s enactment, was problematic in Nigeria.

Notwithstanding the purported domestication of the SUA Convention (and its protocol) by section 215(h) of the Merchant Shipping Act 2007 there were doubts about the proper domestication of SUA as required by the Nigerian Constitution.

Section 3 of SPOMO has clarified the position by defining ‘piracy’ as any:

(a) illegal act of violence, act of detention. or any act of depredation, committed for private ends by the crew or any passenger of a private ship or private aircraft and directed

(i) in International Waters against another ship or aircraft or against a person or property on board the ship or aircraft, or

(ii) against a ship, aircraft, person or property in a place outside the jurisdiction of any state;

(b) act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; and

(c) act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) of this section.

SPOMO is a further illustration of the fact that Contracting states are empowered in accordance with their municipal laws to arrest and prosecute persons, ships or aircraft suspected of committing piracy regardless of whether the pirate or attacked ship flies a foreign flag or has a foreign crew. The definition also covers violent acts committed against property other than ships, such as aircraft and floating and fixed platforms in the Nigerian Exclusive Economic Zone.

Section 4 of SUA lists 18 maritime offences and unlawful acts at sea, which include armed robbery at sea and acts other than piracy committed within Nigeria or its maritime zone. Such acts include:

  • the hijacking of a ship, aircraft or fixed or floating platform.
  • the destruction or vandalism of a ship, installation, or navigation facility; or
  • interference with the operation of a ship, installation, or navigation facility.

Jurisdiction of the Federal High Court of Nigeria

Section 5(2) of SUA the Federal High Court, to the exclusion of all other courts, has jurisdiction to hear and determine any matter under the act.

Some Key SPOMO Provisions

Such provisions include those relating to restitution to owners of violated maritime assets and the forfeiture of proceeds of piracy or maritime offences.

The act also provides that the right of prosecution shall reside in the Attorney General of the Federation of Nigeria; any officer so designated by the attorney General; or the Nigerian Maritime Administration and Safety Agency (NIMASA), with the Attorney General’s consent. These provisions have given rise to genuine concerns about the potential for delays or outright vetoes, due to bureaucratic process or political reasons in the grant by the Attorney General of consent to commence proceedings, which may be very urgent.

 

Deep Blue Project – 2021

Nigeria is investing much of its maritime safety and security hopes in the Deep Blue Project. Initiated by the Federal Ministry of Transportation and Federal Ministry of Defence, it is being implemented by the Nigerian Maritime Administration and Safety Agency (NIMASA), with participation from the Nigerian Navy, Nigerian Army, Nigerian Air Force, Nigeria Police, and Department of State Services.

The Deep Blue Project aims to prevent illegal activities in the Nigerian Exclusive Economic Zone (EEZ), enforce maritime regulations, enhance safety of lives at sea, and prevent illegal activities in the inland waterways. In February, the Federal Government added the Secure Anchorage Area (SAA), off the coast of Lagos, to the areas under the protection of the Deep Blue Project.

The project is designed with three categories of platforms to tackle maritime security issues on land, sea, and air. The land assets comprise the Command, Control, Communication, Computer, and Intelligence Centre (C4i) for intelligence gathering and data collection; 16 armoured vehicles for coastal patrol; and about 600 specially trained troops for interdiction, known as Maritime Security Unit. On air, there are two Special Mission Aircraft for surveillance of the EEZ, one of which was received May 12, with the second expected to arrive soon; three Special Mission Helicopters for search and rescue; and four Unmanned Aerial Vehicles. The sea assets consist of two Special Mission Vessels and 17 Fast Interceptor Boats.

All the assets have been delivered, except one Special Mission Aircraft.

The Deep Blue Project assets would be deployed to prevent pipeline vandalism, oil theft, illegal bunkering, arms smuggling, drug trafficking, human trafficking, and illegal fishing. They would also be deployed for pollution prevention and control in the Nigerian maritime environment.

The project is in line with the country’s total spectrum maritime security strategy, anchored on four pillars, namely, situational awareness, response capability, law enforcement and local partnerships, and regional cooperation.