AfCFTA and protection of labour: time to consider the development of a dedicated Protocol?

A paper published in the last edition of the African Human Rights Yearbook edited by the Pretoria University Law Press (PULP) raises an interesting issue, concerning the lack of social clauses in the AfCFTA framework to protect labour standards and the rights of workers for the new jobs that will be hopefully created by the trade liberalisation process triggered by the AfCFTA. This exposes such workers at further risk of job loss (for unlawful dismissal) and exploitation. If, on one hand, extensive research has been conducted so far to estimate the potential job creation effects arising from the implementation of the AfCFTA, studies aimed at analyzing the quality of jobs that will be generated are very limited. There is a risk that these workers will not be guaranteed with decent working conditions, the paper warns, and that the liberalisation of trade that the AfCFTA will stimulate will undermine the quality of employment, leading to lower wages, less job security, health and safety problems, longer working hours and increased workloads.

The AfCFTA, according to the author of the paper, follows the pattern of those free trade agreements which steer the rules of the economic game more in favour of investors, than of workers. Indeed, in crafting the AfCFTA Agreement, African States have clearly given priority to economic interests, while ignoring the need to introduce provisions aimed at protecting labour standards. In this Agreement, achieving a quantitative objective of job creation, has clearly taken precedence over the objective of achieving quality jobs.

As it has been observed, once tariffs and other barriers are removed, companies have an incentive to shift production to where costs are lower. Jobs are then transferred from countries with higher wages and better labour protection to countries with lower production costs. This can trigger what is known as a "race to the bottom", where States can be tempted to compete with each other in attracting investments and companies by lowering labour protection standards. Even if the AfCFTA Protocol on Investments to some extent aims at avoiding this risk, the agreement remains largely insensitive to this problem. Yet, it would deserve a particular attention, given the fact that this continent is one of the regions with the lower quality jobs and labor standards in the world. The protection of the labour standards and the rights of workers within the AfCFTA would also make it possible to contribute to the implementation of the United Nations' Sustainable Development Goals (SDGs), and in particular of the SDG No 8, which is dedicated to the promotion of “Sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all".

The proposal formulated in the paper is therefore to introduce a protection to core labour standards within the AfCFTA framework by developing a dedicated Protocol, which should include a dispute settlement system to solve disputes on cases of non-respect of labour provisions within the AfCFTA. This solution is not new. Already an article published on the Trade Unions and Trade in Africa website in June 2023 recommended the adoption of such a Protocol, proposing the inclusion in the relevant text of core labour standards aligned with the International Labour Organization (ILO) principles. The article also recommends the creation of a specific enforcement mechanism to ensure implementation of the relevant rules, and provisions for informal economy workers, SMEs and women’s maternal health.

In this regard, AfCFTA negotiators could leverage on article 28 of the Agreement, that introduces a five-year review mechanism (after its entry into force), aimed at aligning the text of the agreement to the new challenges of regional and international development. The first step of this review cycle is scheduled for May 2024. Lastly, the author proposes to include in the composition of the AfCFTA Council of Ministers (which currently consists of the African Ministers responsible for Trade) the African Ministers responsible for labour. These Ministrers would be responsible for ensuring the effective implementation of the social aspects of the AfCFTA to be incorporated into the above-mentioned Protocol.