The demand for civil society participation in the negotiation and implementation of trade agreements has recently intensified following the growing and progressive mainstreaming of sustainable development (social, economic and environmental) issues in free trade agreements. Free trade agreements directly affect the civil society as exporters, importers, investors or consumers. Civil society participation is crucial for trade agreements to attain global economic, social and environmental standards outlined in the United Nations Agenda 2030 and its Sustainable Development Goals (SDGs). The question is how the civil society participate and to what effect.[1]

Civil society organisations have an important role to promote good governance (also in trade); holding governments to account and requiring transparency – asking for information, updates on the negotiations and then once an agreements is concluded, monitoring, asking for information, holding implementing institutions to account to effectively implement the agreement and to provide information, also to marginalised stakeholders (small to medium enterprises) that could take advantage of the opportunities. The provisions in the trade agreements related to civil society organisations’ roles must be founded on these basic good governance principles.

The Economic Partnership Agreement (EPA) between the European Union (EU) and the Southern African Development Community (SADC) Group comprising Botswana, Eswatini (former Swaziland), Lesotho, Mozambique, Namibia and South Africa acknowledges civil society participation in its text.[2] The SADC EPA recognises the role of civil society in the monitoring and implementation process (Article 4), achievement of sustainable development (Articles 7 and 10) and dispute settlement process (Article 90). These particular provisions arguably constitute vague normative standards but provide a formal platform for the civil society to engage in the implementation and operation of the SADC EPA. The civil society can petition their participation in SADC EPA monitoring process or hold their governments to account for their commitments via such provisions. Also important is that the role of civil society in trade agreement goes beyond what is provided for in a specific agreement. Nigeria’s scenario pertaining to the African Continental Free Trade Area is an appropriate example of the role of the private sector in holding government account in negotiations, getting access to information through the entire process.

The SADC EPA guarantees the southern African parties numerous benefits including 100% free access to the EU market of products from Botswana, Lesotho, Mozambique, Namibia, and Eswatini. South African exports to the EU have been guaranteed 98.7% full and partial liberalisation. The Agreement has been provisionally implemented since 16 October 2017. The SADC EPA objectives cannot be effectively implemented, nor its prospective benefits fully realised without significant participation of the civil society. The implementation of the Agreement will require a wide spectrum of follow-up action by the state parties as well as substantial and inclusive participation of all relevant stakeholders, including civil society. In Article 4 of the SADC EPA, each party has committed to continuously monitor the operation and proper implementation of the SADC EPA through regular engagement with civil society groups within their jurisdictions.

The SADC EPA is expected to promote sustainable development and poverty alleviation in the southern African region, among other things. The SADC EPA’s sustainable development dimension can be fully realised if there is meaningful participation and dialogue between all relevant stakeholders, including environmental, economic and social rights groups. This will ensure that the SADC EPA attain its objective on economic, social and environmental dimensions (e.g. inclusion, women and youth participation, poverty reduction, labour standards and environmental protection, and consistency with SDGs).

In Articles 7 and 10, parties have committed to achieve people-centred sustainable development through dialogue of relevant authorities and stakeholders, including the civil society. Although dialogue in itself has value, the role of dialogue in promoting access to information, to hold governments to account to implement the agreement and to provide support access to information is really where the value addition comes. Development outcomes do not come from dialogue per se but from the process that dialogue can facilitate to promote effective implementation and dispute resolution.

The civil society has an important role to play in the SADC EPA dispute settlement process as amicus curiae – friend of the court (Article 90). Amicus curiae is a rule which allows states, individuals, entities, governmental or non-governmental organisations not party to a dispute to provide legal or factual information (known as amicus curiae brief) to the court/tribunal because they have strong interest in the subject matter. The submission of amicus curiae briefs by non-state actors is a common phenomenon in the World Trade Organisation dispute settlement practice.

SADC member states do not only have a regional obligation ‘to promote sustainable and equitable economic growth and socio-economic development that will ensure poverty alleviation with the ultimate objective of its eradication, enhance the standard and quality of life of the people of southern Africa’ (Article 5 of the SADC Treaty). But also, to ensure broad-based participation of all stakeholders in pursuit of this objective. Article 23 of the SADC Treaty obligates member states to fully involve and cooperate with all stakeholders including private sector, civil society, non -governmental organisations, and workers and employers’ organisations in pursuit of the SADC objectives.

It is imperative for governments to uphold and implement the agreed SADC priorities and principles in order to improve the livelihoods of the people, promote sustainable development and support the vulnerable groups through capacity building, transparency and information sharing. In the case of SADC EPA, capacity building is needed to ensure exporters comply with the high technical standards of the EU – sanitary and phytosanitary standards (SPS). Having trade-related infrastructure, effective food agencies and technology as well as a good customs network in place is equally important. Crucial information must be shared, and (the complex and legalistic texts) made user-friendly and easily accessible to all stakeholders including the civil society. The civil society must have access to information on export procedures, rules of origin, health and safety regulations or SPS, funding opportunities and support initiatives for small and medium enterprises, among other things.

Further, the SADC EPA is based on the principle of transparency which requires parties to share information and procedures related to customs and customs related trade issues (Article 45), technical barriers to trade (Article 56), SPS measures (Article 63), laws, regulations, procedures and administrative rulings of general application, and other commitments under any international agreements relating to any trade matter covered by SADC EPA (Article 106), among other things.

As interested parties and ultimate beneficiaries of SADC EPA, the civil society has a responsibility to petition and hold their governments to account for their commitments by adopting vibrant monitoring mechanisms, characterised by robust processes, systems and institutions at both national and regional levels. Existing national civil society organisations in the region must converge to form a regional institution representing the voice of civil society not only in the SADC EPA matters but also for other trade agreements in the future. The EU, for example, has the European Economic and Social Committee (EESC) which plays an important role in the monitoring and implementation of trade and sustainable development matters of the EU trade agreements. The EESC could provide useful guidelines for the establishment and operation of a SADC civil society organisation.

[1] tralac participated in the SADC-EU Economic Partnership Agreement High-Level Civil Society Forum in Johannesburg in October 2017. Find out more about the event.

[2] The full text of the SADC-EU EPA and other resources are available to download HERE.