Efficient supranational institutions
will be required to coordinate implementation and deepening of the African
Continental Free Trade Area (AfCFTA). The AfCFTA will need supranational
institution similar to those at the national level and probably with much
higher authority to monitor and enforce implementation of the AfCFTA decisions in
the member states and at the regional level. To achieve this, Member States
need to cede some sovereign powers to the continental authorities and allow
their national bodies to operate on the principal of subsidiarity. In other
words, the ultimate power has to be at the continental level as operations and
enforcement are achieved through the national bodies.
The AfCFTA should avoid following
wholesomely the footsteps of the existing economic blocs in Africa. A closer look
at these blocs reveals that only a few supranational authorities have been
established and even then they are not empowered with enough authority to
monitor and enforce implementation of the decisions. In most of the economic blocs
in Africa, the visible and operational supranational institutions are mostly
the Secretariats. This is noticeable with economic blocs such as EAC, COMESA,
SADC, ECOWAS and IGAD, among others. Although the Secretariats are important in
the integration process, their main function has been mainly to coordinate the
blocs in the integration process. Secretariat have been limited to preparation
and coordination of meetings, following-up
and tracking progress on implementation of the decisions and updating the
responsible parties. In most cases and as reflected in article 13 of the
agreement establishing the AfCFTA, Secretariats have limited powers to enforce
implementation and reprimand member states for noncompliance.
However, supranational institutions
are meant to break the barriers of sovereignty and increase openness in all
economic forms. Thus they need adequate mandates and authority to act independently
on measures of Member States that are inconsistent with the Treaty. Take an
example of article 116 of the Treaty on the functioning of the European Union
(TFEU), the Commission is mandated to monitor and determine consistence of the
measures in Member States, determine whether they distort the conditions of
competition in the internal market and consult the Member States concerned to
address the distortion. Where consultation fails, the European, Parliament and
the Council, are mandated to issue the necessary directives to address the
distortion. Articles 28 and 30 of the TFEU prohibit imposition of customs
duties or charges with equivalent effect on goods originating from a member
state. In article 258 the Commission is mandated to assess whether a Member
State is fulfilling an obligation under the Treaties, if it is not conforming,
the Commission delivers a reasoned opinion on the matter after giving the State
concerned the opportunity to submit its observations. Where the State concerned
does not comply with the opinion within the period laid down, the Commission can
forward the matter before the Court of Justice of the European Union.
It is clear from the example above
that EU member states intentionally empowered the Commission to be an authority
on matters of enforcing compliance. African Union can borrow a leaf to establish
institutions with such powers. Member States cannot be left alone to monitor
and compel themselves to comply with the Agreement. They are competitors in the
market with domestic, sovereign and political interests to serve. This brings
in a conflict of interest which has to be checked by an independent party.
For example, in addition to the
Secretariat and the Dispute Settlement Authority that have already been
established under articles 13 and 20 of the Agreement establishing the AfCFTA,
more authorities will be needed to ensure effective coordination, monitoring
and enforcement of Agreement. Other supranational or continental authorities
required Include
(a) the Surveillance and Monitoring Authority to monitor the
market, assess the application of the AfCFTA Agreement by the Member States and
ensure fulfillment by the AfCFTA Member States of
their obligations. The Authority should be given powers and mandate similar to
those of the EU Commission or the Surveillance
Authority
of the European Economic Area (EEA). Where a new authority is not possible the
Secretariat can be empowered to perform this function.
The AfCFTA Protocol on rules and procedures on settlement of
disputes as currently designed will not be sufficient to compel Compliance by
the Member States. Articles 4 to 10 on nondiscrimination of the AfCFTA Protocol
on trade in goods or article 4 of the Protocol on trade in services will
require close monitoring and surveillance. Member
States tend to apply complex measures to evade compliance and takes a dedicated
market surveillance and technical assessment to ascertain existence of a
noncompliance measure by a Member State. Leaving it to the traders to identify
such measures and then report to their countries to raise the matter may not be
the best way to go about. Moreover, Member States have other considerations
before raising any complaint against a trading partner. A Member State may choose
not to complain or report an ongoing non-tariff barrier in fear of trade retaliation
or in other spheres. It is easier to secure compliance where an independent
body is responsible for picking up inconsistent measures and following the laid
up procedure impose a remedy
(b) Competition Commission
to implement decisions aimed at maintaining fair competition within the AfCFTA by
monitoring and enforcing measures on anti-competitive conducts by companies that
would damage the interests and erode the benefits of the FTA. The powers and
mandates should be aligned with existing
regional competition commissions under COMESA, EAC, ECOWAS and say with similar
arrangements to the EU and EEA.
(c) Court of Justice to interpret the AfCFTA Agreement and
related decision to make sure it is applied the same way in all Member States,
and to settle legal disputes between national governments and AfCFTA institutions.
The powers and mandates should be aligned with national courts and the existing regional Courts of
Justice under COMESA, EAC, and ECOWAS, among others
(d) System of standards development,
accreditation and surveillance on application and compliance. Standardization
plays a central role in the proper functioning of the market. Harmonized AfCFTA
standards will help to ensure free movement of goods within the internal market
and allow enterprises to become more competitive. Harmonization helps producers
to produce with one standard for all the AfCFTA market. However monitoring and
enforcing compliance on standards should be lifted to continent level to avoid
member states using this area to impose technical barriers to trade.
(e) The Pan African Parliament will require supranational legislative,
supervisory or budgetary powers to promote effective transparency, accountability
in member states and strength cooperation under the AfCFTA.
The protocols establishing the above
institutions must have clear sanctions and execution criteria in cases where
there is noncompliance by the Member State or the Authority itself. The
protocols must have supranational jurisdiction over the national laws.
Lastly, one important cross cutting element
that must be ensured is the funding of supranational institutions. They have to
be properly facilitated to enable them perform their work effectively. Lack of
funding will render the supranational institutions ineffective and dependent on
donor funding from development partners whose interest may not be aligned with
the objectives of AfCFTA.
