The Institutional Implications of Article 19 of the AfCFTA – where do the Regional Economic Communities fit in?
Article 19(2) of the AfCFTA Agreement provides that “State Parties that are members of other regional economic communities, regional trading arrangements and custom unions, which have attained among themselves higher levels of regional integration than under this Agreement, shall maintain such higher levels among themselves”.
This provision implies that trade liberalisation and regional integration in Africa (and therefore the implementation of the AfCFTA commitments) will take place on different tracks. This is a unique formula. It means that the Regional Economic Communities (RECs) are also building blocks of the continental integration plan envisaged by the AfCFTA.
This complicated task needs institutional guidance. The Niamey Extraordinary African Union Assembly session of July 2019 directed the AU Commission to have the structure of the AfCFTA Secretariat, its work program and budget approved by the appropriate AU Policy Organs by February 2020. The Secretariat must monitor the implementation of AfCFTA Agreement and submit reports to the AfCFTA Council of Ministers for consideration at the AU Assembly’s Ordinary Sessions. One of the Niamey decisions calls upon the Secretariat, the Commission and the RECs to develop a framework of cooperation to facilitate the development of the intra-Africa trade.
The AfCFTA Agreement recognises the following RECs: the Arab Maghreb Union (UMA); the Common Market for Eastern and Southern Africa (COMESA); the Community of Sahel-Saharan States (CEN-SAD); the East African Community (EAC); the Economic Community of Central African States (ECCAS); the Economic Community of West African States (ECOWAS); the Intergovernmental Authority on Development (IGAD) and the Southern African Development Community (SADC). There are of course several others, including the Southern African Customs Union (SACU), which also play an important integration role. Although not a recognised REC, SACU falls within the ambit of Article 19(2). Its origins go back to 1910. More than 50% of total intra-African trade takes place in SACU.
Not all these RECs are Free Trade Areas (FTAs) yet. But some of them are quite advanced in terms of the extent of their regional integration and are Customs Unions, or purport to be.
Some of the RECs have accepted obligations going beyond trade liberalisation. SADC Members, for example, have adopted a wide range of Protocols. They deal with matters such as energy, transport, regional water courses, the environment, political cooperation etc. These activities have a legal basis (separate Protocols) going beyond the aims covered by Article 19(2) of the AfCFTA Agreement. They will presumably not disappear when the objectives of the AfCFTA have been achieved.
The RECs are, as a rule, international organisations in their own right. They are endowed with legal personality. The AfCFTA has not been created as a new legal person. In addition to being a free trade area, it is also a flagship programme of the African Union (AU). Its Secretariat will be a unique legal person but will be linked to the structures of the AU.
Overlapping membership causes many complications for regional integration. One of the aims mentioned in the Preamble of the AfCFTA Agreement refers to the “need to establish clear, transparent, predictable and mutually-advantageous rules to govern Trade in Goods and Services, Competition Policy, Investment and Intellectual Property among State Parties, by resolving the challenges of multiple and overlapping trade regimes to achieve policy coherence, including relations with third parties”.
This will make matters much easier but will take time and will require deliberate action. The AfCFTA hopes to provide a framework for doing so but does not contain specific plans and timeframes for achieving this ambitious objective. The RECs should be part of these plans.
 As provided in Art 5, AfCFTA Agreement.
 The Preamble speaks of “the aspirations of Agenda 2063 for a continental market with the free movement of persons, capital, goods and services, which are crucial for deepening economic integration, and promoting agricultural development, food security, industrialisation and structural economic transformation”.
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