There is a provision in the African Continental Free Trade Area (AfCFTA) Agreement which provides that:

[the] Council of Ministers shall within its mandate take decisions in accordance with this Agreement; ensure effective implementation and enforcement of the Agreement; take measures necessary for the promotion of the objectives of this Agreement and other instruments relevant to the AfCFTA. (Art 11(3) AfCFTA Agreement. Emphasis added.)

Article 23 provides that additional legal instruments “within the scope of this Agreement deemed necessary” may be added to the collection of Protocols and their Annexes already adopted.

These provisions are important because they demarcate the powers of the AfCFTA institutions and indicate how this continent-wide member-driven arrangement will function. Institutions established by an international agreement may not adopt decisions about matters falling outside their powers. That would result in ultra vires actions and be void. The AfCFTA does not establish an international organisation as such and does not provide for supra-national powers. It only has an Institutional Framework for the Implementation of the AfCFTA, which consists of the AU Assembly, Council of Ministers, Committee of Senior Trade Officials, and the Secretariat.^[1]

The scope of the Council’s mandate is a matter of interpretation. There are some guidelines for doing so. One should start with the official objectives of the AfCFTA. They are listed in Articles 3 and 4 of the AfCFTA Agreement. The long-term “general objective” of the AfCFTA is “to create a single market for goods, services, facilitated by movement of persons in order to deepen the economic integration of the African continent … [and] a liberalised market for goods and services through successive rounds of negotiations.” (Art 3 AfCFTA Agreement.) The AfCFTA State Parties:

shall progressively eliminate tariffs and non-tariff barriers, progressively liberalise trade in services, cooperate on investment, intellectual property rights and competition policy, cooperate on all trade-related areas, cooperate on customs matters and the implementation of trade facilitation measures, establish a mechanism for the settlement of disputes concerning their rights and obligations, and establish and maintain an institutional framework for the implementation and administration of the AfCFTA. (Art 4 AfCFTA Agreement.)

Another point of departure is the fact that the AfCFTA is an FTA; trade policy and trade with third parties are matters within the powers of the individual State Parties. The AfCFTA Agreement regulates intra-African trade, not trade with third parties. The AfCFTA Protocol on Trade in Goods is clear:

Nothing in this Protocol shall prevent a State Party from concluding or maintaining preferential trade arrangements with Third Parties, provided that such trade arrangements do not impede or frustrate the objectives of this Protocol, and that any advantage, concession, or privilege granted to a Third Party under such arrangements is extended to other State Parties on a reciprocal basis. (Art 4(2) AfCFTA Protocol on Trade in Goods.)

There is also a link between the Council of Ministers and the AU. The Assembly, as the highest decision-making organ of the AU, shall provide oversight and strategic guidance on the AfCFTA, including the Action Plan for Boosting Intra-African Trade (BIAT). (Article 10(1) AfCFTA Agreement.) The Council of Ministers shall report to the AU Assembly through the Executive Council of Ministers of the AU. (Art 11(2) AfCFTA Agreement.) The same countries are AfCFTA State Parties and Members of the AU.

The most important practical aspect relates to the manner in which Council decisions are taken: they require consensus. If certain State Parties refuse to support a proposal, a Council decision cannot be adopted. What then often happens is that the wording will be watered down. It is very difficult to reach consensus on sensitive trade issues when more than 50 countries, at different levels of economic development, must agree.

This does not mean that the Council of Ministers cannot discuss global trade issues and “make recommendations in accordance with the provisions of this Agreement”. (Art 11(3) (j) AfCFTA Agreement.) It can express views about matters on the World Trade Organisation (WTO) agenda, AGOA negotiations, or the importation of second-hand clothing. According to news reports, a Council decision was adopted in July 2023 to “ban” the importation of second-hand clothing into Africa. What was actually decided was to develop a Protocol to tackle this matter. What such a Protocol will entail is to be awaited. It will have to be negotiated, adopted, and enter into force (per the requirements of Article 23) before it establishes obligations for those State Parties which will ratify it or accede to it.

There are countries where trade in second-hand clothing still flourishes, despite the negative consequences for the local textile industry. In the EAC, only Rwanda has banned the importation of second-hand clothing. The AfCFTA Council cannot, through an ad hoc decision, create a legal obligation for all the State Parties to ban the importation of specific products. AfCFTA obligations are implemented by the State Parties. To ban the importation of certain goods, domestic laws and penalties will be needed. Such bans should also be compatible with multilateral and other trade-related obligations.

What about urgent matters such as climate change? The AfCFTA Agreement does not contain instruments on climate change and green energy. These matters are discussed in other continental, regional and global forums. Not all challenges confronting intra-African trade are automatically AfCFTA issues. Smaller configurations may be more suitable for tackling them. Some RECs have started to do so. The AfCFTA Protocol on Trade in Goods says that:

State Parties that are members of other RECs, which have attained among themselves higher levels of elimination of customs duties and trade barriers than those provided for in this Protocol, shall maintain, and where possible improve upon, those higher levels of trade liberalisation among themselves. (Art 8(2).)

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^[1] Arts 9-13 AfCFTA Agreement.