Arguments for and against regionalism

Arguments have been made in favour of and against regionalism. On the positive side, RTAs are perceived as platforms that ensure the quick advancement of participating states to freer trade over a wide range of goods and services. Due to factors such as geographical contiguity, cultural and economic ties, RTAs also offer participating countries a fertile testing ground for new issues. Hence, RTAs could act as building blocks for a more open and liberal MTS. In practice, the constituent treaties of many new-generation RTAs clearly urge state parties to ensure that the rules are consistent with WTO rules.Footnote ²⁴ This practice points to a recognition that the interface between regional trade liberalization and the WTO rules should ideally be formalized by agreement.

Developing countries view RTAs as the nucleus of a wider regional economic integration process that is an integral aspect of national development strategies. This is so when the limited number of policy options to maintain and increase their market share in world trade in goods and services are considered. Furthermore, developing countries mostly lack the capacity to promote sustained economic growth and development, and enhance their beneficial integration into the global economy. Consequently, the formation of an enlarged regional market through RTAs is viewed as a stepping-stone towards the attainment of full regional integration, with its economic, political and social ramifications.Footnote ²⁵

On the other hand, developed countries appear to place emphasis on the trade agreement feature that covers services, investment and other trade-related issues. This can be deduced from FTA agreements between developed countries and developing countries that include development partnership terms. For example, the Cotonou AgreementFootnote ²⁶ between African, Caribbean and Pacific (ACP) countries and the European Union (EU) recognizes the reduction and eventual eradication of poverty as prerequisites for achieving sustainable developmentFootnote ²⁷ and the gradual integration of the ACP countries into the world economy.Footnote ²⁸ To achieve this, the agreement underscores the importance to the sustainable development of the ACP countries of sustained economic growth, development of the private sector, increasing employment and access to productive resources.Footnote ²⁹

One negative impact of RTAs on global trade is the possible emanation of populist, inward looking, discriminatory and protectionist trading entities competing for spheres of influence within the global market.Footnote ³⁰ For example, RTAs that cover a large share of the global market may disadvantage non-members, leading to net trade diversion rather than net trade creation.Footnote ³¹ In the same vein, the continued pursuit of deeper integration within the WTO framework and participation in RTAs may arguably constrain the ability of developing countries to pursue proactive national development strategies addressing supply-side capacities. Policy instruments such as subsidies, investment incentive and performance requirements, local content in government procurement and other industrial policies addressing development challenges may suffer. WTO rules already establish mechanisms that place constraints on the use of some of these instruments, although they do create room for flexibility or policy space that manifests in the form of special and differential treatment. As a result, more stringent commitments on a wider range of issue areas under RTAs may prevent the flexibility enjoyed at the multilateral level.

Impact of AfCFTA on multilateralism

It is imperative to examine how the AfCFTA regime will affect multilateralism. AfCFTA is unprecedented in size and scale. It seeks to create a single continental market for goods and services with free movement of businesses, people and investments. It is projected that, by 2030, the African market will extend to 1.7 billion people, with cumulative consumer and business spending of US$6.7 trillion.Footnote ³² In this way, the AfCFTA is expected to expand intra-African trade through better harmonization and coordination of trade liberalization and facilitation regimes across the RECs and at the continental level.Footnote ³³ Under the agreement, countries have committed to the removal of tariffs on 90 per cent of goods, with removal in respect of the remaining 10 per cent of items to be phased in at a later stage.

The UN Economic Commission for Africa estimates that the effective implementation of AfCFTA, alongside concerted efforts to improve trade-related infrastructure and reduce import duties and transit costs, would deliver a 52.3 per cent increase in intra-African trade by 2022.Footnote ³⁴ It is projected that this figure should double upon the elimination of non-tariff barriers.Footnote ³⁵ Even more crucial is the expectation that an increase in intra-African trade will engender the structural transformation of economies from low productivity and labour-intensive activities to higher productivity and skills-intensive industrial and service activities. This will in turn create jobs, leading to poverty alleviation and hastening development.

The projections on the potential benefits of the effective implementation of AfCFTA are laudable, but they amount to mere statistics without careful consideration of the operation of AfCFTA in a multilateral system. It is the case that each African state is a member of at least two RTAs. This has localized the “spaghetti bowl” conundrum in the region, resulting in an entanglement of countries in multiple RTAs that cover a myriad of issue-areas such as investment and competition policy, procurement, labour, environment and human rights.Footnote ³⁶ Without proper management of these RTAs, they may constitute stumbling blocks rather than the building blocks that they are envisaged to constitute under the AEC.

Notification

Crucial to the proper management of this scenario regarding the compatibility of the AfCFTA regime with the WTO is the issue of notification to the committees empowered to receive such notifications. The Committee of Regional Trade AgreementsFootnote ³⁷ is charged with implementing the transparency mechanism for RTAs under article XXIV of GATT and article V of GATS. Additionally, the Committee on Trade and DevelopmentFootnote ³⁸ governs all arrangements under the Enabling Clause. Since it is evident that AfCFTA will harmonize extant RTAs, including the recently concluded Tripartite Free Trade Agreement (TFTA), it is important to monitor the notification of the current preferential trade arrangements on the continent closely, to identify where AfCFTA will fall. Currently, of the eight recognized RECs on the continent, the Common Market for Eastern and Southern Africa (COMESA),Footnote ³⁹ East African Community (EAC),Footnote ⁴⁰ Economic Community of West African States (ECOWAS),Footnote ⁴¹ Economic and Monetary Community of Central Africa (CEMAC),Footnote ⁴² Southern African Customs Union (SACU)Footnote ⁴³ and South African Development Community (SADC)Footnote ⁴⁴ have all been notified.Footnote ⁴⁵

The provisions of article XXIV of GATT apply if the members of a preferential trade arrangement are developed countries or a combination of developed and developing countries, as is the case with SACU and SADC. The Enabling Clause's horizontal provision (paragraph (2)(c)) applies where the members of the arrangement are developing countries. There are several legal requirements that a WTO-consistent RTA should meet in order to become “qualified” under the MTS. It is noteworthy that the requirements under the Enabling Clause on the rubric of tariff elimination are generally less stringent than those in article XXIV. Paragraph 8(b) of article XXIV requires the elimination of duties and other restrictive regulations of commerce on substantially all aspects of trade, while the Enabling Clause merely requires the mutual reduction of tariffs. Since most African countries fall between being “developing” or “least-developed”, AfCFTA would most probably qualify under the Enabling Clause and should be notified under it.

Due to its sheer breadth, AfCFTA may face challenges as to its true form. While the instrument is referred to as a free trade agreement, it is akin to a “comprehensive partnership agreement because the disciplines will go beyond trade in goods to over services, investment, competition and intellectual property”.Footnote ⁴⁶ The challenge of notification and qualification should not be taken lightly. It is a fundamental issue with which AfCFTA members must contend as WTO members. The current structure of RTAs vis-à-vis the provisions of the Enabling Clause and the complex requirements of article XXIV make notification of AfCFTA under both provisions untenable.

On the basis of these considerations, the preferred arrangement for AfCFTA is notification under the provisions of article XXIV of GATT and article V of GATS. Two reasons underpin this position. First, SACU and SADC were both notified under the provisions of article XXIV. This is because South Africa has self-identified as a developed state in the WTO since its GATT days. Secondly, the extent of the AfCFTA provisions would reasonably require that article XXIV and article V be applied as the appropriate provisions for qualification and notification. This is not necessarily an argument for neglecting the provisions of the Enabling Clause, rather it is as a result of the anticipated trade creation effects of AfCFTA,Footnote ⁴⁷ which ultimately augurs well for the MTS.

Struggle for power and influence in Africa

On paper, AfCFTA appears to be a timely and well-thought-out trade instrument, but it will take more than just pleasantly couched provisions and lofty objectives to succeed. It is important that member states consider socio-political and historical trade-offs around the world that could shape the global economy. Akinkugbe sounds a cautionary note by forewarning African states of the “contemporary international and regional struggle for power and influence”, with potential implications for AfCFTA.Footnote ⁴⁸ At the international level, Africa continues to witness the manifestation of the global struggle for power between China, Russia and the United States of America directly on its turf. At the regional level, the negotiation and eventual implementation of AfCFTA will depend on the management of the complex socio-economic and political dynamic that has remained since colonialism. These dynamics and the paradigm of trade alliances that emerge from them are crucial factors that African leaders and policy experts involved in the negotiation of AfCFTA must address proactively.Footnote ⁴⁹

The idea of free trade in its current form in multilateral discourse is sometimes devoid of the reality of the national interests that undergird international trade agreements. Consequently, a fully operational AfCFTA will pit Africa's new economic order against other established multilateral trading regimes controlled by a few dominant economic powers. It is therefore imperative to ensure that AfCFTA has measures to preserve its objectives amid the interests of the global economic powers. Africa has become the battleground of these powers and her leaders must be mindful of the threat of competition that AfCFTA may be perceived to present. For instance, China's Belt and Road policy has made considerable progress in the region, drawing the attention of the USA.Footnote ⁵⁰ This battle between the global powers is further exacerbated by the EU partnership with African states through the Alliance for Sustainable Investment and Jobs. African states must ensure that they do not pander to the rivalries between these superpowers over the control of the MTS. Similarly, AfCFTA negotiators must be careful of being lured into compromising an otherwise stronger position on the altar of financial aid or infrastructure development projects.

At the regional level, African states must cast aside their colonial histories and work assiduously towards a common vision for implementing AfCFTA. The unity demonstrated by the signing of AfCFTA and the ratifications that followed are undoubtedly symbolic milestones for trade in the region. However, challenges such as struggle for regional power, legacies of colonialism that have engrained distrust in economic cooperation, and the rise of protectionism among African states, provide important contexts to the unique challenges AfCFTA faces at the continental level. Hence, the hopeful aspirations contained in the text of AfCFTA must be followed by conscious efforts to address the historical, socio-political, and economic and power dynamics on the continent. Only then will effective implementation of AfCFTA become a reality. African leaders and policy makers must therefore ensure that AfCFTA does not follow the path of previous attempts at trade liberalization on the continent by demonstrating that the lessons of old have been learnt.

Market access and competitive pressure

AfCFTA is built on the creation of a single market for goods and services, liberalization of intra-African trade, and the elimination of tariffs and non-tariff barriers to trade.Footnote ⁵² AfCFTA incorporates as a part of its cardinal principles the requirements of progressive liberalization, non-discrimination and reciprocity.Footnote ⁵³ Similar provisions underpin AfCFTA's Protocol on Trade in GoodsFootnote ⁵⁴ and Protocol on Trade in Services. Article 19 of the Protocol on Trade in Services states:

Amid liberalization and market access, AfCFTA has the greatest levels of income disparity of members compared to any continental free trade agreement, and more than twice the levels in similar trade groupings, such as the Association of Southeast Asian Nations and the Caribbean Community.Footnote ⁵⁵ Africa's three largest economies (Egypt, Nigeria and South Africa) contribute over 50 per cent of Africa's cumulative GDP, while Africa's six sovereign island nations collectively contribute just 1 per cent.Footnote ⁵⁶ This entails that these three largest economies will exploit access to the market more than other AfCFTA members. This will create competitive pressure on local industries and have a chilling effect on the export capacity of the recipient economies.

AfCFTA incorporates trade remedies such as anti-dumping and countervailing measures,Footnote ⁵⁷ global safeguard measures,Footnote ⁵⁸ preferential safeguards to situations where a sudden surge of a product imported into a state party causes or threatens to cause serious injury to domestic producers,Footnote ⁵⁹ protection of infant industriesFootnote ⁶⁰ and various exceptions.Footnote ⁶¹ Without doubt, member states can rely on these provisions to safeguard their national economic interest and industrial policy.

Also, most African countries lack viable corporate institutions with a dominating transnational character and capacity to trade across borders, apart from South Africa and to a lesser extent Egypt and Nigeria. In fact, small and medium enterprises (SMEs) are responsible for more than 80 per cent of Africa's employment and 50 per cent of its GDP, with manufacturing only representing about 10 per cent of total GDP in Africa.Footnote ⁶² This translates into a few economies dominating the rest and potentially putting thousands of jobs at risk for the less competitive economies. AfCFTA recognizes the differences in member states’ levels of development. Hence, it notes that, in conformity with its objective of ensuring comprehensive and mutually beneficial trade in goods, state parties shall provide flexibilities to other state parties at different levels of economic development or that have individual specificities as recognized by other state parties.Footnote ⁶³ These flexibilities include, inter alia, special consideration and an additional transition period in the implementation of the agreement, on a case-by-case basis.

Despite the flexibilities, there are still latent challenges. Unsurprisingly, Nigeria initially refused to sign the agreement, with the Nigerian Labour Congress describing it as a “renewed, extremely dangerous and radioactive neo-liberal policy initiative”.Footnote ⁶⁴ Further, Nigeria fears that the lack of infrastructural facilities such as electricity, road and rail networks will force most companies to relocate to neighbouring countries from where they will flood Nigerian markets with finished goods. It is envisaged that this will lead to massive job losses in the country and a resultant dislocation of social cohesion. Similarly, some African countries that have already signed the agreement have dragged their feet on ratification, jeopardizing the January deadline 2019, which had been regarded as a prerequisite to launch phase II of the agreement, covering investment, intellectual property and competition policy.

Free-riding on rules of origin

Rules of origin constitute the criteria required to determine the national source of a product.Footnote ⁶⁵ The significance of rules of origin is based on the fact that duties and restrictions generally depend on the origin of imports. Government practice regarding rules of origin has disclosed divergences historically. Although the requirement of substantial transformation is widely recognized, some governments apply the criterion of a change of tariff classification, while others apply the ad valorem percentage criterion and yet others apply the criterion of manufacturing or processing operation.Footnote ⁶⁶ Rules of origin are necessary: to implement certain trade policy measures and instruments of commercial policy, such as anti-dumping duties and safeguard measures; to determine whether imported products receive most favoured nation or other preferential treatment; for the purpose of trade statistics; for the application of labelling and marking requirements; for quotas; and for government procurement.Footnote ⁶⁷

Rules of origin could be preferential rules of origin or non-preferential rules of origin. Preferential rules of origin apply in reciprocal trade preferences such as RTAs and customs unions, or in non-reciprocal trade preferences such as preferences in favour of developing countries and least-developed countries.Footnote ⁶⁸ Conversely, non-preferential rules of origin are the criteria applicable in the absence of any trade preference, ie when trade is conducted on a most favoured nation basis. Annex II of the WTO Agreement on Rules of Origin provides that the agreement's general principles and requirements for non-preferential rules of origin relating to transparency, positive standards, administrative assessments, judicial review, non-retroactivity of changes and confidentiality also apply to preferential rules of origin.Footnote ⁶⁹

A thorny issue in the consideration of rules of origin in FTAs is the challenge of harmonizing and adopting a universally applicable standard.Footnote ⁷⁰ It is unclear how AfCFTA preferential rules of origin will handle the situation.Footnote ⁷¹ Article 4 of the AfCFTA Rules of Origin (Rules of Origin)Footnote ⁷² stipulates that a product shall be considered to originate from a state party if it was wholly obtained in that state party or underwent substantial transformation in that state party.Footnote ⁷³ Existing RECs have different rules of origin regimes. For instance, COMESA generally applies a 35 per cent value addition while SADC has product specific rules of origin. These differences may remain for a while given that AfCFTA recognizes, in its cardinal principles, existing REC free trade agreements as its building blocks and best practices from RECs for its efficient operation.Footnote ⁷⁴ Also, article 19 of AfCFTA stipulates that state parties that are members of other RECs, regional trading arrangements and custom unions, which have attained higher levels of regional integration than under AfCFTA, shall maintain those higher levels among themselves. It is unclear how AfCFTA will reconcile its adopted rules of origin with the REC rules of origin, but clear harmonization is required.

Moreover, since rules of origin help to prevent trans-shipment, efficient enforcement is critical to their success within member states. With manufacturing representing only about 10 per cent of the total GDP of African countries, a possibility of free-riding from more developed manufacturing economies that satisfy legal and institutional preconditions for doing business cannot be ruled out. This is part of the reasoning given by the Manufacturers Association of Nigeria for dissuading the Nigerian president from signing AfCFTA. The association noted that it would not support the adoption and ratification of AfCFTA until issues of market access and enforcement of rules of origin had been properly addressed. Some African countries have concluded trade agreements with non-African countries. The concerns are that such non-African parties may, engaging in free-riding, rely on those agreements to access African markets on a preferential basis.

Specifically, it has been contended that, since Morocco has both ECOWAS membership and a trade pact with the EU, EU firms could incorporate in Morocco as a platform to access West African markets, particularly Nigeria, which is the largest ECOWAS market. It is argued that this would drive many manufacturing firms and factories in Nigeria out of business because of a lack of competitiveness,Footnote ⁷⁵ resulting in losses in jobs and revenues. Arguably, other AfCFTA members with analogous trade pacts with non-African countries would face a similar situation with a decisive effect on market access.

Although this constitutes a realistic assessment of the situation, it should not dampen the euphoria that underpins AfCFTA's emergence. In any case, efficiency gains will prosper and consumers will value better quality and affordable pricing consequent upon the free trade agreement coming into effect. Further, the Rules of Origin incorporate extensive provisions meant to prevent circumvention of the agreement. A grey area will be how robust and rigorous enforcement will be achieved. There are prevalent institutional weaknesses and ineffectual internal controls across AfCFTA members. This could create veritable grounds for loopholes to be exploited by third parties. Once AfCFTA is fully ratified and becomes effective, efforts should be intensified to ensure transparency in the execution of the rules of origin provisions.

Capacity building

Among the greatest challenges African countries will encounter in executing the AfCFTA agenda is capacity constraint.Footnote ⁷⁶ Apart from the insufficient and outright absence of transport infrastructure, particularly inter-country rail connections in many regions, Africa will require capacity enhancement in trade facilitation, customs cooperation and IT infrastructure. Article 29 of the Protocol on Trade in Goods states that the Secretariat, working with state parties, RECs and partners, will coordinate and provide technical assistance and capacity building in trade and trade related issues for implementing the protocol. The Secretariat will explore avenues to secure the resources required for these programmes. Similarly, article 27 of the Protocol on Trade in Services recognizes the importance of technical assistance, capacity building and cooperation in order to complement the liberalization of services, to support state parties’ efforts to strengthen their capacity in the supply of services and to facilitate implementation of the protocol and attainment of its objectives. Under the protocol, the state parties agree, where possible, to mobilize resources, in collaboration with development partners, and implement measures in support of their domestic efforts, with a view to, inter alia, building capacity and training for trade in services. The Secretariat, working with state parties, RECs and partners, will coordinate the provision of technical assistance.

Without doubt, the Protocol on Trade in Goods and Protocol on Trade in Services recognize the prevalent capacity constraints and make substantial provisions to address them. The protocols equally recognize that the assistance of development partners such as international institutions and developed economies is critical to foster the efficient implementation of obligations. Given the developmental stage of most African countries, technical assistance and capacity building will come more from outside than within, ie it will come from regional and multilateral agencies. This entails that increases in efficiency are going to be incremental. Unarguably, technical assistance and capacity building from regional and multilateral agencies will involve some costs. It is still unclear how financing from development partners will be executed, whether it will be repayable and who will be responsible for repayment.

Furthermore, most African countries lack an efficient infrastructure for the effective operation of FTAs. Unlike in the EU, in most regions of Africa there are none of the inter-country rail connections necessary for the easier haulage and consignment of heavy goods and it does not appear that members have plans to build such infrastructure. Without adequate inter-country rail networks, efficient transportation in the execution of AfCFTA's objectives and principles will be impaired. Further, most African countries lack a stable electricity supply. Nigeria is deeply implicated in this situation. As noted elsewhere, Nigeria initially refused to sign AfCFTA because of fears that firms and factories may relocate to neighbouring countries with a better electricity supply, which would result in a massive closure of industries, loss of revenue and unemployment in the country.Footnote ⁷⁷ Apart from general acknowledgement of capacity constraints under article 29 of the Protocol on Trade in Goods and article 27 of the Protocol on Trade in Services, there are no specific provisions on how to build the infrastructure.

Harmonization in RECs vis-à-vis AfCFTA principles

AfCFTA members are signatories to various RECs that impose complimentary and contradictory obligations. The scheme for harmonizing these parallel memberships and overlapping obligations with AfCFTA is unclear. Article 3 of AfCFTA states that part of the agreement's objectives is to resolve the challenges of multiple and overlapping memberships and expedite the regional and continental integration processes. However, the objectives also include the need to contribute to the movement of capital and natural persons and facilitate investments, building on the initiatives and developments in the state parties and RECs, entailing that reliance will be placed on the best practices in RECs to facilitate the movement of capital and natural persons. Furthermore, article 5 of AfCFTA emphasizes the preservation of the existing body of law.Footnote ⁷⁸ Similarly article 18 of the Protocol on Trade in Services requires state parties to negotiate sector specific obligations through the development of regulatory frameworks for each of the sectors, as necessary, taking account of best practices and the existing body of law in the RECs. These provisions indicate the preservation of best practices from the RECs in consonance with the existence of AfCFTA. It is unclear how the preservation of REC best practices will exist in harmony with the obligations espoused in AfCFTA.Footnote ⁷⁹

Moreover, the TFTA constitutes another issue to be reconciled with AfCFTA's objectives and principles. TFTA is an African free trade agreement between COMESA, SADC and EAC. 24 of the 27 member states of these blocs have signed the agreement. Like other RECs, it is unclear how this grouping will co-exist with AfCFTA. Article 4 of the Abuja Declaration Establishing the African Economic Community provides, as part of broader objectives, its resolve to coordinate and harmonize policies among existing and future economic communities in order to foster the gradual establishment of an economic community. That is, it aims to strengthen regional integration as a fulcrum for achieving continental integration in all fields of trade, in line with the general principle of progressive achievement of the overall goal of the AEC.

Potential impacts of non-tariff barriers

Free trade agreements aim to remove tariffs and non-tariff barriers to trade. While tariffs are easily spotted and tackled, non-tariff barriers to trade are subtle and therefore more complex to tackle. Aided by the Multi-Agency Support Team, the UN has published diverse forms of non-tariff barriers to trade.Footnote ⁸⁰ Non-tariff measures describe “policy measures other than ordinary customs tariffs that can potentially have an economic effect on international trade in goods, changing quantities traded, or prices or both”.Footnote ⁸¹ Non-tariffs measures extend to technical measures, non-technical measures and export measures.Footnote ⁸²

Technical measures include such measures as sanitary and phytosanitary measures, technical barriers to trade, pre-shipment inspection and other formalities. Non-technical measures that can restrict trade include: contingent trade-protective measures; non-automatic licensing, quotas, prohibition and quantity control measures other than for reasons related to the WTO Agreements on the Application of Sanitary and Phytosanitary Measures and on Technical Barriers to Trade; price control measures, including additional taxes and charges; finance measures; measures affecting competition; trade-related investment measures; distribution restrictions; restrictions on post-sales services; subsidies, excluding export subsidies; government procurement restrictions; intellectual property; and rules of origin.Footnote ⁸³ Export measures cover export-related measures.

As shown above, non-tariff barriers are diverse and may take different shapes and forms. Hence, the classification is not exhaustive. It has been noted that the classification “does not judge on legitimacy, adequacy, necessity or discrimination of any form of policy intervention used in international trade” and the classification is “designed to organize information in a database format”.Footnote ⁸⁴ These measures are mostly non-discriminatory government regulations aimed at preserving security, consumer health and the environment. While these regulations are often “perfectly legal and legitimate, compliance with differing requirements across countries might be complex and costly for companies seeking to export, particularly for small and medium-sized enterprises”.Footnote ⁸⁵ The WTO and RTAs incorporate rules on non-tariff measures aimed “to facilitate regulatory convergence, promote transparency and prevent and address trade frictions resulting from [non-tariff measures] without challenging their legitimate objectives”.Footnote ⁸⁶

AfCFTA generally disallows non-tariff barriers to trade but practical enforcement will be challenging. Over 70 per cent of the world's least-developed countries are found in Africa. These countries feature mostly fragile SMEs and inefficient companies. Hence, these countries may employ non-tariff barriers to facilitate certain discriminatory objectives such as the protection of indigenous companies. Moreover, AfCFTA members lack the technical capacity to investigate the sophisticated application of non-trade barriers effectively. If not properly managed, resort to one or more of these measures could stultify the goal of free trade espoused by AfCFTA.

Non-trade concerns

AfCFTA does not seem to allay adequately the fears of stakeholders regarding the resolution of the overlapping relationship between trade and non-trade issues, in respect of environmental sustainability, labour rights and human rights, for example. Non-trade issues could be manifested by certain objectives.Footnote ⁸⁷ The first is to align trade policy with the economic policies and development objectives of the implementing state. A second objective is to pursue public policy objectives, such as health and safety standards for products, environmental sustainability, labour rights and human rights. It is unclear how AfCFTA will address these non-trade issues. Resource-rich African countries with viable extractive sectors, such as Nigeria, are not only defined by extreme poverty but are also reeling under environmental injustice with no reasonable means of redress. Labour rights are also impacted, especially given the massive poverty and income disparity that afflict the continent. Some African leaders and institutions are notorious for human rights abuses of their citizens. Worse still, weak institutions impede access to justice. Clearly, AfCFTA will scarcely be able to address these concerns in practice, even if it does so in principle, mainly because accountability and transparency are lacking among African leaders, who will ultimately oversee the administration of AfCFTA through appropriate institutions.

Apparently, the interaction between trade and non-trade issues is not new in international trade relationships, constantly viewed from the prism of free trade versus fair trade, or free trade versus just trade.Footnote ⁸⁸ WTO jurisprudence demonstrates conflict and conformity with respect to trade and non-trade issues. The responses of the WTO dispute settlement framework to trade and non-trade issues have elicited condemnation that it is “going too far to protect states’ rights under nontrade law and not going far enough”.Footnote ⁸⁹ Others accused the WTO Appellate Body of judicial activism,Footnote ⁹⁰ while some contend that states should be able to rely upon international law to protect non-trade issues.Footnote ⁹¹ The WTO Appellate Body has acknowledged the interrelationship between trade and non-trade issues in a number of cases.Footnote ⁹² Beyond this acknowledgement, however, there is no significant or successful incorporation of non-trade issues at the WTO level.Footnote ⁹³

It is necessary to point out that developing countries often oppose the inclusion of non-trade issues in WTO negotiations because they consider it a ploy by developed countries to restrict access to their markets on account of their predicted failure to adhere to them.Footnote ⁹⁴ However, with the promulgation of SDGs that partly impinge on international trade law, the interaction between trade and non-trade issues will come under wider scrutiny. Nevertheless, it is clear that, at the WTO level, efficient resolution of the relationship between trade and non-trade issues remains far from being achieved. If this uncertainty is transposed into the implementation of AfCFTA, most of whose signatories possess unenviable records in environmental governance and the protection of labour and human rights, the outcome will be catastrophic. Furthermore, civil society was not properly consulted before AfCFTA was presented for signature. There is scanty evidence to show that there was a human rights impact assessment and environmental protection stress testing before the conclusion of the agreement.