The launch of the Tripartite Free Trade Area will now take place in June during the third COMESA-EAC-SADC Tripartite Summit. As we go to press, the exact date is not yet known.

The TFTA, once enacted, would bring together the East African Community (EAC), the Southern African Development Community (SADC) and the Common Market for Eastern and Southern Africa (COMESA).

The TFTA would cover 26 countries ranging from Egypt to South Africa with a combined population of 625 million people and an aggregate GDP of US$1 trillion. These figures represent half of the African Union’s membership and 58 percent of the continent’s economic activity, according to COMESA.

Negotiations to launch the TFTA were initiated in 2011 with the adoption of a declaration aimed at establishing an FTA that emphasised market integration, infrastructure and industrial development as the three main pillars of such process. The negotiating principles and the roadmap to conduct the negotiations were also adopted during the 2011 Tripartite summit.

A new deadline

The launch of the TFTA was originally projected to take place in December 2014 at the Tripartite Summit of Heads of State and Government in Cairo, Egypt. However, it was then delayed and rescheduled for the first quarter of 2015, according to a draft report of the senior official’s meeting that preceded the December African Union Conference.

Earlier this year, in January, Fatima Acyl, AU Commissioner for Trade and Industry indicated that the TFTA would be launched in May in Cairo, Egypt.

After the launch of the TFTA in June, negotiations to establish a continental FTA across Africa are expected to be initiated shortly.

More progress expected

“The meetings in Malawi did not achieve as much as we expected” declared a source involved in the Tripartite negotiations.

Malawi hosted the 11th Tripartite Trade Negotiations Forum (TTNF) from 21-24 February and discussions were geared to finalise work in various areas such as tariff offers, rules of origin (RoO) regimes, trade remedies, dispute settlement, and movement of business people.

Apart from RoO, the other difficult negotiating areas are related to trade remedies and the dispute settlement mechanism, indicated our source.

Rules of origins

The COMESA-EAC-SADC troika faces notable challenges in harmonising differential RoO, which have so far impeded inter-regional trade and the creation of regional value chains. One of the key challenges consists in finding an acceptable framework for RoO, as the EAC and COMESA regimes in this area are significantly different from the one used by SADC. 

Experts such as Eckart Naumann from the Trade Law Centre in South Africa have pointed out that 56 percent of the RoO are dissimilar across the three regional economic communities.

The TTNF agreed during their previous round of discussions in October last year that “where rules of origin among the three RECs are common or identical, these will be adopted as Tripartite rules without engaging in negotiations on these rules.”

This time, the TTNF considered the need for a legal instrument for the operationalisation of the interim rule of origin for the TFTA.

Currently the following option to operationalise rules of origin under the TFTA has been put forward: where rules are common (including wholly originating) 35 percent ex-works costs (distribution and logistics) has been retained as an interim option. If enacted, such move could mean that products on which the value added criteria of 35 percent ex- works cost would apply could gain duy free regional market access. 

Work on rules of origin is likely to continue after the launch of the TFTA as part of the “post signature activities” indicated an observer.

Discussions related to rules on specific products will be more “gradual”; however “it is not expected that such work will be completed prior to the launch.”

Trade remedies and dispute settlement

The annex dealing with dispute settlement has been concluded by the technical working group on trade remedies and dispute settlement and will be considered upcoming TTNF meetings. Deliberations on these topics have been deferred to the next TTNF.

The discussions on trade remedies and dispute settlement have been particularly challenging given the lack of consensus on the approach and the content of trade remedy disciplines in the TFTA agreement, indicated the negotiations progress report of the 10th TTNF held in Bujumbura, Burundi in October 2014 – a copy of which has been reviewed by Bridges Africa.

Another TTNF will take place in the coming months where “more concrete progress should be achieved,” according to the source.

Tariff liberalisation

15 countries had made offers by the time of the third Tripartite Sectoral Ministerial Committee (TSMC) on Trade, Finance, Economic Matters, Home and Internal Affairs, which also took place in October 2014 in the context of the 10th TTNF. Since then other Tripartite member states have been in the process of exchanging tariff offers.

The October meeting urged member states that have not exchanged tariff offers to do so by 30 April 2015.

Additionally the Tripartite Task Force was tasked to populate Annex 1 of the TFTA agreement with finalised tariff offers while mobilising resources to assist those member states experiencing challenges in finalising their tariff offers.

Tariff offers for all COMESA countries that are not in in the EAC or SACU are “ready” except for Zimbabwe, the Democratic Republic of Congo, Eritrea and Ethiopia, indicate the negotiations progress report.

All EAC member states (i.e. Burundi, Kenya, Rwanda, Tanzania, and Uganda) have completed their tariff offers also. Offers for Burundi, Kenya and Rwanda are based on the EAC acquis of 100 percent tariff liberalisation for existing FTA countries, subject to reciprocity. For example, EAC and SACU and EAC and Egypt have exchanged tariff offers and embarked on the process of negotiations.

Tariff offers for non-COMESA SADC countries (including Swaziland) were not ready, the report specifies.

According to the report, the modalities for tariff liberalisation set a goal of 100 percent tariff liberalisation under the TFTA. 

The principle of “building on the acquis” has been retained. As a result countries that are members of existing REC FTAs are not required to negotiate tariff liberalisation under the TFTA with other members of the same REC FTAs. However, they can consolidate their existing tariff liberalisation levels into the TFTA in line with the above-mentioned principle.

In addition, the modalities stipulate that for countries that have not yet fully liberalised their tariffs under their respective REC regimes, or between countries in existing REC FTAs, 60-85 percent of tariff lines should be liberalised upon entry into force of the TFTA. The text includes an additional period of five to eight years to liberalise the remaining tariff lines under the TFTA.

Movement of business people

The main stumbling block to progress on the movement of business persons has been divergent views over the interpretation of the Ministerial direction that negotiations should take place in Phase I of the TFTA “on a separate track”. 

Following guidance from the third Meeting of the TSMC in October 2014, the Technical Tripartite Committee on Movement of Business Persons (TC-MBP) agreed to develop the terms of an agreement on the Movement of Business Persons. The COMESA-EAC-SADC Tripartite Technical Committee settled on a draft agreement on the movement of business persons within the region in November 2014.

While much progress has been achieved in the last two meetings of the TC-MBP, some important articles on the draft agreement are still outstanding and have to be resolved. These include: Guiding principles, temporary entry, stay and exit and dispute settlement.

National consultations are ongoing on all these areas and a meeting of the TC-MPB is being considered in July 2015, to resolve the outstanding issues.

Industrial Development

The Tripartite Technical Committee on Industrial Development (TTCID) has adopted draft Modalities for Cooperation, and a draft Programme of work on industrial development. The TTCID will now develop the appropriate legal instrument for cooperation in industrial development as outlined in the Programme of Work and Road Map.

Forging a link between TFTA and EU-EPAs

A briefing released this month by the European Parliament explains that the creation of the TFTA is “important” in the context of the Economic Partnership Agreements, as it would prevent a potential situation in which EU goods could enjoy better access to local markets than products originating from other African Regional Economic Communities (RECs).

The EU concluded their EPAs with three African regional economic communities last year, namely SADC, EAC and the Economic Community of West African States (ECOWAS), after more than a decade of difficult negotiations. All three African RECs are now expected to engage in the ratification process.

Next steps

Among other elements, the finalisation of negotiations on outstanding areas of the TFTA agreement, especially in regards to rules or origin, trade remedies and dispute settlement, will be introduced following the launch of a post-signature implementation plan.

After the launch, the entry into force of the agreement will be conditional on the ratification of the text by two-thirds majority of the Tripartite FTA member states, according to the revised 2010 draft agreement. The Tripartite FTA will then form a building block for the continent-wide free trade agreement, known as the Continental FTA.

During a meeting last month, Sindiso Ngwenya, Secretary General of the Common Market for Eastern and Southern Africa (COMESA) and Chair of the Tripartite Task Force, proposed initiating negotiations with the ECOWAS to establish an FTA between COMESA, SADC, EAC and the ECOWAS ultimately.

This article is published in Bridges Africa by the International Centre for Trade and Sustainable Development.