Regional Economic Communities have unique Features and different Functions
The African Continental Free Trade Area (AfCFTA) is generating a new awareness of and an interest in the Regional Economic Communities (RECs). They are expected to play a role in achieving the goals of the AfCFTA. But there is surprisingly little in the legal texts of the AfCFTA about how this has to happen and what the RECs must actually do.
The role of the RECs as building blocks of the AfCFTA (those that qualify as such) must still be worked out, as the implementation of the AfCFTA incrementally proceeds. How should such a discourse be structured and where should it take place? What should be on the agenda? It has to be recognized that the RECs are legal persons in their own right and have their own legal instruments, with obligations for their Member States. These obligations are about matters such as REC integration agendas and how their treaties can be amended. Each one of them has a unique history, profile, and value for their Member States.
The RECs are not parties to the AfCFTA Agreement. Member States of the RECs are also the AfCFTA State Parties. The AfCFTA Council of Ministers, which is responsible for the “effective implementation and enforcement” of the AfCFTA Agreement, consists of Ministers of the State Parties and takes decisions on the basis of consensus. There is no supra-national AfCFTA organ that can decide that the RECs (or some of them) must change course or be dissolved. Whatever happens to the RECs as promoters of AfCFTA objectives will need a consensus-based AfCFTA strategy and be supported by the Members of individual RECs. These Member states will carefully weigh their own interests and the benefits that existing RECs bring.
Economic integration in Africa is a member-driven process. Article 5 of the AfCFTA founding Agreement says the AfCFTA shall be governed by specific principles such as “driven by Member States of the African Union; RECs’ Free Trade Areas (FTAs) as building blocs for the AfCFTA; variable geometry; preservation of the acquis; reciprocity; consensus in decision-making; and best practices in the RECs, in the State Parties and International Conventions binding the African Union.”
The reference to the acquis is important. This concept has gained a specific meaning, after being adopted as part of the negotiating principles of the Tripartite Free Trade Area (TFTA): Countries that are members of existing REC FTAs will not need to negotiate tariff liberalisation under the TFTA with other members of the same REC FTAs but will consolidate their existing tariff liberalisation levels into the TFTA in line with the principle of Building on the Acquis. Article 19(2) of the AfCFTA Agreement subsequently confirmed 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”.
Four of the eight RECs mentioned in Article 1 of the AfCFTA Agreement have not yet formed Free Trade Areas. The implication is that these four are not AfCFTA building blocks as described in Article 5 of the AfCFTA Agreement. Only REC FTAs are building blocks.
REC membership is not based on a neat architecture. Overlapping membership is a long-standing a feature of the African regional integration landscape. And several of the Members of the RECs that are not yet FTAs, do belong to REC configurations that have become FTAs. But the AfCFTA views overlapping REC membership as a problem; it duplicates trade governance measures and makes compliance with standards and the pursuit of regional value chains more difficult. It also adds to trade costs.
Article 3 of the AfCFTA Agreement says one of the General Objectives of the AfCFTA is to “resolve the challenges of multiple and overlapping memberships and expedite the regional and continental integration processes”. How this problem is to be resolved is not indicated but it should be on the agenda of talks about the future of the RECs.
What exactly is expected from the RECs? Perhaps the focus should rather be on the various technical aspects where they should be part of efforts (in respect of matters falling under their jurisdiction) to improve trade governance on the continent. Trade facilitation is an obvious example. The AfCFTA structures will not be able to remove Non-Tariff Barriers (NTBs) without the involvement of the relevant REC arrangements.
The RECs also do different things. Some of them have accepted responsibility for sensitive political matters such as regional stability, as recently demonstrated when the Southern African Development Community (SADC) tried to assist (not very successfully) in efforts to restore peace in Eswatini after pro-democracy protests turned violent, the country came to a standstill, and cross-border trade was disrupted.
The SADC Protocol on Politics, Defence and Security Co-operation of 2001 aims to promote peace and security across Southern Africa, protecting the region’s people from instability due to the breakdown of law and order, developing a common foreign policy, and cooperating on matters related to security and defence. The Protocol also specifies the operating structure of the Organ – the chairperson, Troika, and various committees – and these structures’ responsibilities, systems of appointment, and procedures for operation. This Protocol was amended in 2009 to incorporate a structure for regional policing cooperation activities – the Southern African Regional Police Chiefs Co-operation Organisation.
The RECS are not a homogenous set of regional integration arrangements. They pursue similar but often also dissimilar objectives. And they are at very different levels of integration. They are historically important and sometimes enjoy recognition from third parties as entities with which to conclude reciprocal trade agreements. They are important for promoting the objectives of the AfCFTA but the formula for doing so must still be worked out.
 The only concrete hint appears in Art 3(c) of the AfCFTA Agreement: The AfCFTA has 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”.
 Art 11(3)(b) AfCFTA Agreement.
 More than 60% of all intra-African trade in goods takes place among the Members of SADC. The Southern African Customs Union (SACU) is part of SADC, is the world’s oldest functioning CU, and is commercially highly integrated, also in respect of trade in services.
 TFTA Progress Report 24 Oct 2014.
 The Arab Maghreb Union (UMA), the Community of Sahel-Saharan States (CEN-SAD), the Economic Community of Central African States (ECCAS) and the Intergovernmental Authority on Development (IGAD) are not FTAs. The Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC), the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC) are FTA or have already advanced to custom union level.
 See the relevant Blog in this Newsletter.
 SADC Members States argued for weeks over the wording of a statement. BL Premium, 20 Oct 2021.
 The EU’s Economic Partnership Agreements want to do so.
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