AfCFTA's undisclosed Annexes cloud the implementation of the agreement

Negotiations surrounding the African Continental Free Trade Area (AfCFTA) are facing criticism from Bilaterals.org due to an alleged lack of transparency, being some key annexes to its foundational protocols still undisclosed to the public. Despite the completion of all main AfCFTA Protocols, their full ratification is stalled as a handful of crucial annexes, like those to the Protocol on Intellectual Property Rights, are still under discussion.

The AfCFTA's core agreement, signed in 2018, established a broad framework for continent-wide free movement of goods and services. However, the actual operational rules and details are contained within its various Protocols and their accompanying Annexes. Initially, 3 Protocols were adopted: trade in goods, trade in services, and dispute settlement, which entered into force together with the AfCFTA core agreement (“Phase 1” Protocols). Subsequently, five more have been concluded, covering digital trade, competition, investment, intellectual property rights, and women and youth in trade: so-called Phase 2 Protocols. The Bilaterals' post also mentions a Protocol on customs and trade facilitation which is still under negotiation. However, this is inexact. At the very beginning of the AfCFTA negotiations, there were plans to develop a separate Protocol on Customs and Trade Facilitation to support the Protocol on Trade in Goods (as explained in this paper), but in the end it was decided to incorporate provisions on customs cooperation and trade facilitation under the Protocol on Trade in Goods, in two specific annexes: 3 and 4.

The Bilaterals’ post argues that the negotiation of the annexes to the AfCFTA Protocols is proceeding in an untransparent way, with limited involvement of stakeholders, and that the piecemeal approach that is being followed in the AfCFTA negotiations does not allow a comprehensive evaluation of the full implications of the agreement, being some important elements of the relevant framework still under development.

This is not the first time that Bilaterals raises these points. Another post published in April 2024 argued that the annexes to the Protocol on Digital Trade, 8 in total, were being negotiated disjointly and separately from the main Protocol (which at that time was already been approved), behind closed doors.

In reality, also this information is not entirely correct. While some organizations participated, their engagement was largely sporadic and primarily focused on the final validation stages of the annexes. In this area, maybe Africa could learn more from the experience of other blocs. The European Union (EU) for instance, utilizes a permanent platform for continuous stakeholders' engagement called “Trade Contact Group” (TCG) each time specific policies and regulations in the area of trade or customs need to be developed. This body, which brings together the main industry, customs professionals and logistics associations involved in customs-related activities in the Europe, including entities established outside the territory of the EU and having interests in the EU market, is involved in regular consultations during the entire process of development of such policies and regulations. For the formulation of the most important policy reforms, additional consultations are held with other stakeholders representing both the public and private sectors, academic institutions and the civil society in general, by making publicly available the draft document and policies on dedicated on-line platforms, together with explanatory notes, and making the comments made by each stakeholder group available on the same platform. Currently, Africa lacks a similar established mechanism for such comprehensive and ongoing dialogue.

At present, not all the drafts of all the annexes to the Phase 2 AfCFTA Protocols have been made publicly available, even those already concluded. The only annexes accessible are the certified true copies related to the Protocol on Digital Trade, which were recently approved. Draft annexes on the Protocols on Investment, Intellectual Policy rights and Women and youth in trade are still not available. According to Bilaterals, this limited access to crucial AfCFTA documents, even in draft form, impedes a more participatory and thorough review. Furthermore, Bilaterals highlights a significant procedural ambiguity: the AfCFTA lacks a clear definition for the approval process of the Protocols containing these annexes. This raises several critical questions for the AfCFTA state parties:

• Does each Protocol require a separate ratification law?

• Can a state ratify all Phase II Protocols through a single ratification act?

• Can states that have already ratified the AfCFTA core agreement and Phase I Protocols forgo an additional ratification law for Phase II Protocols?

Beyond these points, the most important concern that the Bilaterals' post inspires is that the lack of systemic consultations with stakeholders with specific regard to the AfCFTA Protocols’ annexes can be an obstacle to the agreement's successful implementation. Experience shows that groups excluded from trade negotiations often become major impediments to the effective execution of these agreements, expecially when they are particularly complex due to their broad scope, like in the case of the AfCFTA. Their lack of understanding or perceived exclusion can lead to resistance, delays, and difficulties in operationalizing the agreement on the ground. Without broader engagement, the AfCFTA risks alienating crucial segments of society whose buy-in is essential for its aspirations to materialize.