The launch of the African Continental Free Trade Area (AfCFTA) negotiations in 2015 was distinctive in that AU Heads of State and Government agreed that negotiations on trade in goods and services would be carried out simultaneously. Until then, the practice had generally been to negotiate trade in goods first, then services. However, the negotiations do not end there; because, at the start of the process in 2015, the AU set the tone for a deeper level of integration by committing to tackle some of the so-called âWTO-plusâ issues in a second phase of the negotiations. These issues include, but are not limited to, investment, competition policy, and intellectual property rights (IPRs). E-commerce and digital commerce could be another problem.
I will therefore focus more on competition policy. The second phase of negotiations is to focus on competition law and policy to facilitate free trade. In the absence of policies regulating the anti-competitive behavior of both domestic and foreign firms, in particular, firms may tend to abuse their dominant market position through cartels, predatory practices and tacit bargaining agreements. market sharing, resulting in reduced consumer choice and often lower quality and higher prices. Such practices harm consumers and small businesses and can interfere with the efficient functioning of markets, ultimately reducing economic dynamism and growth. Competition policy aimed at promoting fair and healthy competition can thus ensure efficient market outcomes and increased opportunities for small and medium-sized enterprises to thrive.
In Africa, the need for “a common competition policy and law to protect and promote free competition and enable the harmonization of trade and investment laws and regulations across the region” has been identified. highlighted from the outset by the ECA (2004) in its first ARIA report. Recently, the same point has been reiterated by Luke and MacLeod (2017), who argue that the AfCFTA can serve as a vehicle to resolve cross-border competition concerns through a continental competition framework.
No goals have yet been set for the competition protocol, but it’s not hard to see that these should include the following:
1. Strengthen competition to promote market efficiency, inclusive growth and structural transformation of African economies;
2. Safeguard the gains from the liberalization of the AfCFTA by ensuring that they are not compromised by anti-competitive practices;
3. Strengthen the region’s capacity to cope with such practices;
4. Harmonize minimum standards of business conduct; and
5. Improve the governance and transparency of competition policy in Africa
However, the competition policy and the protocol may take a backlash due to a few challenges that may arise when attempting to implement. Indeed, there is a plethora of competition regimes and institutions across the continent, which an AfCFTA competition protocol will need to streamline. Twenty-three (23) countries have a competition regime applied by a competition authority. Of these, however, only 15 have comprehensive competition laws that are strictly enforced (World Bank, 2016). Ten countries have a competition law but no competition authority; 4 countries are at an advanced stage of developing competition law while the remaining 17 countries either have no competition law or are in the early stages of preparing one. Even among countries with competition laws, there are wide variations in content, coverage and substance.
In addition, the founding treaties of the main African Regional Economic Communities (RECs) also include competition policy or laws, but these differ institutionally, with some RECs (e.g. COMESA and EAC) establishing competition policies or laws. regional supranational competition authorities while others (e.g. SADC) operate through a cooperative framework (ECA et al., 2019). In the case of a supranational institution, Member States delegate power to an independent apex authority while a cooperation framework involves the sharing of information and experiences without any mandate to deal directly with cross-border cases.
The existence of national and regional competition laws and institutions means that AfCFTA negotiations for a continental competition protocol will start from scratch. However, negotiators will face the heterogeneity and varying complexity of African competition regimes, as well as emerging and other issues (e.g. purchasing power, public procurement) in search of a harmonized approach. . They should coordinate national, sub-regional and regional efforts on cross-border anti-competitive behavior; build on existing skills; build the capacity of member states without national competition laws; establish mechanisms to review competition cases and put in place appropriate continental institutions.
However, for the proposed competition policy and protocol to work, the operational elements of an AfCFTA competition policy protocol will build on the relevant provisions of national and regional competition laws. However, it is the design of the modalities of application that will determine how ambitious Africa is with regard to a continental competition regime. Negotiators will have to choose between a supranational competition authority of the AfCFTA, a framework for cooperation and a sequential approach in which a supranational authority applies competition law via a competition network (ECA et al., 2019).
In terms of coverage, the protocol should encompass the main substantive competition issues, including cartels, mergers, abuse of purchasing power and anti-competitive agreements. It should encompass consumer protection in a dedicated chapter. A strong consumer policy, in line with international standards, can protect consumer rights while ensuring that consumer protection measures do not become (unintentional) barriers to trade. Indeed, it is common for consumer protection policy to be integrated into competition policy both substantively and institutionally. Finally, a separate continental supply policy can complement the competition protocol.
They should also address the issue of some member states like Uganda that do not have competition policy and law and how they can be harmonized with states like Kenya that have an already established structure on law and law. competition policy. This will contribute to the smooth adoption and promulgation of the protocol and law on competition in regional trade.
Muganga writer Ambrose Ibabaza is a lawyer and scholar of the AfCFTA.