Mr Chairperson, President of the Republic of South Africa and Special Guest of Honor, His Excellency Cyril Ramaphosa, represented by the Minister of Justice and Correctional Services Hon Ronald Lamola His Excellency, The President Of Ghana Nana Addo Dankwa Akufo Addo, My Lords Chief Justice of South Africa Hon Justice Raymond Zondo, My Lord Chief Justice of Malawi, My Lord Former Chief Justice of South Africa, My Lords, Justices of the Superior Courts of Judicature of South Africa and Nigeria, other Ministers here present, Hon Members of Parliament, President of the African Bar Association, Present and Past Presidents of the National Bar Associations, Principal and Vice Chancellor of UNISA , other Professors herein Present, Colleagues of the African Bar, Distinguished Guests, Ladies and Gentlemen, all protocols observed.
I feel highly gratified to join the President and members of the African Bar Association at this your Annual Event of the African Bar Association Conference 2023 on the theme ‘Building The Legal Profession in Africa under the African Continental Free Trade Agreement’ held in this auspicious and palatial surroundings of the University of South Africa in Pretoria.
Today I find myself having to speak at this exalted podium and I ask myself how it came about. I would therefore thank the organisers for reposing the confidence in me for me to speak as the Keynote Speaker while hoping that at the end I would have at least done justice to the theme. The theme ‘Building The Legal Profession in Africa under the African Continental Free Trade Agreement’ is apt for discourse, it being only recently in 2019 that the African Continental Free Trade Agreement was truly birthed. It being also just in January 2021 that trade in goods and services under the African Continental Free Trade Area (AfCFTA) Agreement was officially set to commence but never indeed commenced until 7th 0ctober 2022 with only eight (8) participating countries; and it only being this 2023 that is designated ‘the year of AfCFTA: Acceleration of the African Continental Free Trade Area implementation’ by the African Union’
While the above no doubt sets the stage for discourse about ‘The African Continental Free Trade Area Agreement’, it is all too clear to me, or at least it is my view, that the emphasis, as per the theme of this conference, to wit ‘Building the Legal Profession in Africa around the African Continental Free Trade Area Agreement’, most importantly is, how this great profession of Lawyers, Judges and Magistrates, to which we are all a part, can unravel the now existent AfCFTA for the betterment of lawyers on the one hand and the citizens and residents of the African Continent to a larger extent. In short, what is the place and relevance of our legal profession in this new phenomenon or ‘game changer’ as described by the IMF ‘the African Continental Free Trade Area Agreement’ that has greeted the African continent? What is the relevance of our Legal Profession in all this?
So indeed part of what we shall be discussing involves our legal profession – that profession that stands distinctly out as one of the best in the world. This of course puts us in an invidious position where our conduct at all times must measure up with the ideals of the highest order and considerations.
An account in the Bible arguably tells me that when I speak of the legal profession, I am talking about one of the oldest, if not the oldest profession that has ever existed.
In the Book of Genesis, we are told that after God had created the Heaven and the Earth, He formed man.
In Genesis 2:16-17 God commanded: ‘Adam, of the tree of the Garden thou mayest freely eat: Verse 17 ‘but of the tree of the knowledge of good and evil, thou shall Not eat of it; for in the day thou eatest of it thou shall surely die.’ And it was after this event that He created Eve the woman. Later, however, this woman Eve was able to convince her husband Adam for them to eat of the forbidden fruit. On being questioned for his disobedience to the word as commanded, Adam put up a defence to wit; ‘the woman whom thou gavest to be with me, she gave me of the tree and I did eat.’
And when God similarly asked the woman why she had done what she did, she also put up a defence. ‘The serpent beguiled me and I did it’
Our job as legal practitioners being, inter alia, to defend clients or ourselves there can be no gain saying that indeed the art of the legal profession started way back in the biblical historical days before the birth of Christ. From time immemorial, this profession, has developed to the point where we can converge in convivial meetings of this nature to discuss worldly trends and how same is likely to impact on us and our profession and the continent in which we live and ply “our trade”.
While our history from this account and other accounts is very much profound, equally so is our importance which has stood the test of times being a profession that is almost and always relevant to societies wellbeing and progress.
While I may not wish to endear us with too many words and make us feel good about ourselves the following quotations only go towards showing our relevance in Society which has placed a heavy burden or obligation on us. Thus, it is not unsurprising when Janet RENO, the 78th US Attorney-General and the 2nd longest serving Attorney-General of the US 1993 – 2001 said –
‘Being a lawyer is not merely a vocation. It is a Public trust, and each of us have an obligation to give back to communities’
Rebecca Hall (AN ACTRESS) writing on her part noted that –
‘The Legal profession is a business with a tremendous collection of egos. Few people who are not strong egoistically gravitate to it. I don’t want to make vast generalisation about people who go into the legal profession, but there are similarities in the barristers that I met and interacted with, in the sense that they tend to be highly eloquent, highly analytical thinking people who have a rapid –fire think before they speak button as it were’
William HOWARD TAFT (1857-1930) 27th US PRESIDENT AND ONLY person to have been president and later Chief Justice of The USA on the other hand says and I quote
‘Lawyers are necessary in a community. Some of you take a different view; but as a member of that legal profession, or was at one time, and have lost standing in it to become a politician, I still retain the pride of the profession, and I still insist that it is the law and lawyers that make popular government under a written constitution and written Statutes possible’
Being Lawyers, Judges, Magistrates we hail from a profession which is not only clothed in traditional dignity but well adorned with excellent attributes.
Our take on an important instrument like AfCFTA Agreement before its design and after its design becomes truly and truly relevant in shaping the way forward to making THE AfCFTA AGREEMENT to have its full impact on business and investment in the continent and by extension the lives of residents in Africa.
Our Profession has a crucial role to play in both the implementation and success of AfCFTA. These may be summarised as general and specific roles.
Generally speaking, being a profession makes us unique requiring us to live up to the status of being professionals.
As legal professionals we constitute a group of gentlemen and ladies with traditional dignity pursuing a common calling as a learned Art and as a Public Service and no less a public service because it may incidentally be a means of livelihood. 3 (three) iconic features stand out in our hype as professionals without which we become something else and less beneficial to society and these are as follows: – 1) organisation 2) learning and 3) public service
1.Organisation: Today we are gathered here in this auspicious surroundings as an organisation- AfBA.
This would not have been possible if we were not organised locally and internationally within this continent. Thus we have several National Bar Associations represented here in this AfBA Conference but there is room for more organisation to make us more effective, efficient, visible and impactful. As part of this organisation we are obligated to adhere to a strict code of ethics and rules and be truly professional in our work. As we strive to influence the implementation of the AfCFTA Agreement we would need to be more organised coming up with resolutions that would help make the AfCFTA Agreement workable and impactful.
2.Learning. The legal profession is the only profession to which you have ‘learned men and women’ despite the very vast and specialised disciplines of people in other professions. We are the only profession that refer to each other as ‘learned friend’. Apart from the respect to which we hold ourselves and our colleagues, what this means, in my view, is that our legal profession, whilst no doubt based on learning should carefully and deliberately always be evolving and the most dynamic.
As Legal professionals we can no longer sit complacent with an ‘as usual attitude’. It is our duty to always step up advancement in what we do to match up developments that would be needed to make AfCFTA implementation fully possible, effective and a success. Belushi puts it this way –
‘In the old days you would have one lawyer to handle everything: speeding tickets, buying a house, contracts, litigation, real estate, copyrights, leasing, entertainment, intellectual property, forensic accounting, criminal offences…. the list goes on. Now you have to have a separate lawyer for each one of those categories.’
Nowadays advancement in the law covers every facet of society. The law affects nearly every aspect of our society from right to live, to the right to move and so on and so forth. Gone are the days when the study of the law is confined to Family Law, Constitutional Law, Contract Law, Criminal Law, Law of Torts and Land Law. A cursory study of courses offered in Law universities will show that a host of subjects/modules or disciplines e.g Energy Law, Space Law, Media Law Human Rights Law, Dispute Resolution, Alternative Dispute Resolution, Medical Law and Ethics, Legal Practice, Insurance Law, Corporate Social Responsibility, Compliance and Regulation, Corporate governance, Employment Law, Insolvency Law, Competition Law, Environmental Law and so on and so forth, the list goes on.
AfCFTA has five (5) legal texts viz (the rules of origin, the online negotiating forum, the Monitoring and elimination of non-tariff barriers; a digital payments system called PAPS and the African Trade advisory which may well change the scope of international trade law and such be offered by universities.
For instance, we use to talk about payment of United States Dollars that you the businessman will always have to find dollars to execute payment to the seller through letters of credit.
However, with the New PAPSS (Pan African Payment & Settlement System) you pay in your own currency while the exporter from the other end would receive in his own currency.
Thus lawyers in the world of academia would have to up their game in training and building capacity and knowledge in this area or subject for instance.
- Public service – As a profession we render public service thus a spirit of public service will need to be cultivated or engendered to which is intricately linked our livelihood.
In NOTRE DAME LAWS REVIEW Volume 19 No 3 1944 Article 1 Titled ‘What Is A Profession – The Rise Of The Legal Profession In Antiguity’ ROSCOE POUND speaking about the lawyers’ duty as a public service had this to say –
‘What is most important however is that the Legal profession is practiced in a spirit of public service’. ‘A trade’ says Professor Palmer – aims primarily at personal gains; a profession at the exercise of powers beneficial to mankind’…………………The lawyer is not bartering his service as an artisan, nor exchanging the products of his skills and learning as the farmer sells wheat or corn. There is no such thing as lawyers’ strike. The professional man does not measure out his services in proportion to reward, even if, when he can do so, he measures his honorarium by the extent of service rendered. His best service is often rendered for no equivalent, or for a trifling equivalent, and it is his pride to do what he does in a way worthy of his profession even if done with no expectation of reward. No professional man says Professor Palmer thinks of giving according to measure. Once engaged he gives his best, gives his personal best – himself … the real payment is the work itself, this and the chance to join with other members of the profession in guiding and enlarging the sphere of its activities”
We should thus be thinking ‘How can we align with this new Legal framework of AFCFTA and make it come out better for Africa as a whole?’ A whole new opportunity has been provided – how can we grab it and make it work better for all? The first thing is Knowledge of its designs and what is expected from it, it being already in force.
What then is this Africa Continental Free Trade Area Agreement?
Before the advent of the African Continental Free Trade Area Agreement, African economies were considered as some of the least competitive globally. It was the view that the continent was being held back by 55 (fifty-five) fragmented markets which constrained and/or restrained economic growth. While a few of those markets were among the fastest growing economies globally, trade within the continent was one of the lowest in the world as most of the trade was directed primarily outside the continent to fit European and Asian imports requirements thus making this huge continent, the second Largest in the world, reliant on developed countries for trade. This state of affairs couple with Africa’s dependence on trade in primary goods, and weak industrialisation among others, meant that Europe and Asia became the main trading partners for Africa.
8 (eight) Regional Economic COMMUNITIES or trading blocks however existed and these were as follows: –
- The Arab Maghreb Union (AMU) comprising five (5) countries and
- The Common Market for Eastern and Southern Africa (COMESA) comprising 21 countries
- The Community of Sahel–Saharan States (CEN-SAD) comprising 6 countries
- The Eastern African Community (EAC) comprising 5 countries
- The Economic Community of Central African States (ECCAS)comprising 11countries
- The Economic Community of West African States (ECOWAS) comprising 15 countries
- The Intergovernmental Authority on Development (IGAD) comprising 7 countries
- The Southern African Development Community (SADC) comprising 16 countries
There were also active bilateral and multilateral Trade Agreements such as the Arab Mediterranean Free Trade Agreement or AGADIR Agreement, EAC-COMESA – SADC TRIPARTITE, MALAWI-SOUTH AFRICA BILATERAL AGREEMENT AND RWANDA-CONGO BILATERAL AGREEMENT.
Such was the landscape in which African trade was conducted and with these RECs, Multilateral and Bilateral Agreements there were significant improvements in economic regional integration as perhaps contemplated by their founders. But these while making improvements to integrate were hardly enough so that there was still the problem of multiple markets as compared to single common market area, Informal trade still being persistent, Intra-African trade being very low as Africa was ready and willing to trade with the rest of the world, in particular, Europe and Asia than with itself. The reasons for this were
LONG WAITING TIMES WITHIN BORDERS OR CLOSED BORDERS
TIME CONSUMING EXPORT REGULATIONS
POOR TRANSPORTATION ROUTES OR ROAD INFRASTRUTURE
Business Travel in particular across African countries was a challenge due to not only expensive air tickets but onerous visa applications and journeys, leading to loss of productive hours as it takes shorter time to travel to Europe and Asia than it takes to travel within the continent.
These hurdles were particularly TOO DIFFICULT TO overhaul especially for retail traders. There are stories that it takes Shoprite Africa’s top Supermarket Chain up to and over thousands of documents to send one truck load of groceries across regional borders.
Those challenges made it very difficult to conduct business operation, develop and retain skills and distribute talent across the continent .
By the time of the signing of AFCFTA intra-African trade was not only low but abysmally low accounting for only 15% of the continents total trade compared to 58% to and with Asia and 67% to and with Europe.
Predicated on the back drop of such extant problems facing regional trade in Africa, the African Union in an effort to first progressively ameliorate and in the final analysis extricate these problems was compelled to trigger into force what has been termed one of the most ambitious and biggest trade deals the world has ever known with the entry into force of the African Continental Free-Trade Agreement on the 30th May 2019. The vision of AFCFTA was conceived at the 18th Ordinary Session of the Assembly of Heads of State and Government of the African Union held in Addis Ababa, Ethiopia in January 2012 where the framework, road map and/or architecture for the Continental Free Trade Agreement was laid out for accomplishment by an indicative date of 2017. It was, however, not until the 21st of March 2018 that AfCFTA was born with the signing of the Agreement establishing it at the 10th Extraordinary session of the Assembly in Kigali, RWANDA. The Agreement provided that AFCFTA needed AT LEAST 22 ratifications before it could come into force. The pace of the AfCFTA ratifications were remarkable espousing high political Will. By 30th April 2019, only 1 year, 10 months after its signing, the threshold of 22 countries ratifications required for entry into force of the Agreement had been reached with Sierra Leone, being the 22nd State Party and it officially entered into force 30 days thereafter as per Article 23 of the Agreement on the 30th May, 2019 after two (2) further countries were added to wit; Burkina Faso and Zimbabwe.
The aims and objectives of this Agreement are well documented in Chapter 3 of the AfCFTA Agreement and are as follows –
- Create a single market for goods and services, in accordance with the Pan African vision of ‘An integrated, prosperous and peaceful Africa’ enshrined in Agenda 2063;
- Create a liberalised market for goods and services through successive rounds of negotiation;
- Contribute to the movement of capital and natural persons and facilitate investments;
- Lay the foundation for the establishment of a continental customs union at a later stage;
- Promote and attain sustainable and inclusive socio–economic development, gender equality and structural transformation of the State parties;
- Enhance the competitiveness of the economies of State Parties within the continent and the global market;
- Promote industrial development through diversification and regional value chain development, agricultural development and food security; and
- Resolve the challenges of multiple and overlapping memberships and expedite the regional and continental integration process.
As par Article 6 the scope of the AfCFTA Agreement covered Trade in Goods (see protocol on trade in goods Art1-32), Trade in Services (see protocol on trade in services Art1-29 Investment, Intellectual Property Rights and Competition policy. There is a dispute settlement mechanism as enshrined in the last of the protocols the protocols and rules of procedure for the settlement of disputes between State Parties See Articles 1-31 thereof.
For the purpose of fulfilling and realizing the above objects, the trade deal places an obligation and enjoins state parties to do the following viz: –
- Progressively eliminate tariff and non-tariff barriers to trade in goods
- Progressively liberalise trade in services
- Co-operate on investment, intellectual property rights and competition policy
- Co-operate on all trade related area
- Co-operate on customs matters and the implementation of trade facilitation measures
- Establish a mechanism for the settlement of disputes concerning State parties’ rights and obligations; and establish and maintain an institutional framework for the implementation and administration of the AfCFTA.
Article 19 of the AfCFTA AGREEMENT is to the effect that ‘STATE PARTIES that are members of other Regional Economic Communities, regional trading arrangements and customs unions which have attained among themselves higher levels of regional integration than under the Agreement shall maintain such higher levels among themselves’. This is to the effect that the agreement recognises the Regional Economic Communities as building blocks for the free-trade area encouraging RECs to continue trading among themselves according to their trade agreements. This is called preserving the acquis.
Many have hailed it as DREAM which WHEN fully established is going to transform Africa.
According to NARDOS BEKELE THOMAS CEO AUDA –NEPAD ‘The African Continental Free Trade Agreement is a beacon of hope offering significant opportunities for businesses across the continent.’
With similar tenor it has been described as the flag ship project of the African Union’s Agenda 2063, a blue print for attaining inclusive and sustainable development across the continent over the next 50 years.
What cannot be doubted is that The African Continental Free Trade Area Agreement connects or brings together 1.3 billion people across 55 countries with a combined gross domestic product valued at US$3.4 within an economic bloc representing the largest free trade area since the establishment of the World Trade Organisation in 1994.
Some of the benefits of the Agreement are well documented and as per The World Bank’s Projection are as follows:
- Would lift 30million Africans out of extreme poverty and boost the incomes of nearly 68million others who live on less than US$ 5.50 a day.
Under the AfCFTA extreme poverty would decline across the continent with the biggest improvements in countries with currently high poverty rates. West AFRICA would see the biggest decline in the number of people living in extreme poverty a total of 12million followed by central Africa 9.3million followed by Eastern Africa 4.8million and lastly Southern Africa 3.9million people out of poverty.
- Boost Africa’s income by US$450 billion Dollars by 2035 (a gain of 7%) while adding US$76 billion to the income of the rest of the world. Of the US$ 450 billion in income, gains of US$292 billion would come from stronger trade facilitation which are measures to reduce Red tape and simplify customs procedures. The agreement aims to boost Intra-African trade by Tariff liberalisation, to wit, eliminating 97% of tariff on goods and services as a pathway to industrialisation but adding trade facilitation to the mix including measures to reduce red tape, simplify customs procedures and make it easier for African businesses to integrate into the global supply chain would boost income gains by US$292billion. MOST SIGNIFICANTLY these gains will require or demand major efforts by countries to reduce the burden on businesses and traders to cross borders quickly, safely and with minimum interference by officials (to wit; Visa restrictions in particular must be ………… down significantly
- Increase Africa’s exports by US$560 billion mostly in manufacturing;
- Create more decent jobs, improved welfare and better quality of life for all citizenry and sustainable development;
- Ensure inclusivity of women and youth, development of small and Medium ……. Enterprises and overall Industrialisation of the Continent.
The benefits of AfCFTA have been much heralded but we are yet to see same and these are not going to happen because there are challenges and unless same are overcome we are not going to experience this dream come true.
CHALLENGES OF THE AfCFTA
Some of the challenges are as follows:
In practice, despite the fact that African States have have ratified the AFCFTA agreement and have treaty obligations, some still hold on to their protectionist policies with a view to conferring economic advantage to themselves. Thus conflict between continental aspirations and national priorities may already be affecting the implementation of AfCFTA. Suffice it to say that protectionism serves as a hindrance to free trade and it is only when challenges of protectionism are overcome that the free trade stands to thrive.
2. LACK OF POLITICAL WILL. Clearly the speed at which ratifications have come with big Nigeria and BENIN being the last States of 54 STATES to ratify shows a level of political will. But like Oliver Twist, Africa needs more. The harmonization of national policies to achieve regional and global/continental public good requires even greater political will. The mere signing of the said Agreement devoid of the real willingness to implement same would be nothing other than lip service. All parties to the AfCFTA should be committed to implementation. Political will would be needed to remove travel / visa restrictions for Africans travelling within African States
Moreover, customs duties, tariffs, and taxes are major source of revenue for some African countries. Countries with heavy reliance on such taxes would find it difficult to do away with their source of income. In this regard, in order for the free trade to succeed, immediate measures have to be put in place as backup mechanism of these countries until the AfCFTA works. Measures such as creation and operationalisation of AfCFTA Adjustment and compensation fund, introduction of capacity programs for all African countries in order to expose them on how to benefit and use the opportunities that will come with AfCFTA and continuous consultation with economic and non-state actors is very much in demand but is yet to happen.
Furthermore, still, good infrastructure including good Roads and power supply, human resource/capital development with requisite expertise are major necessities for the free trade to thrive in Africa. Unfortunately, these necessities are still major challenges in Africa with most African countries and their leaders still needing to put these fundamental necessities in place.
It is important that African countries commit to improving infrastructure, making proper and harmonised policies in tandem with the Agreement throughout Africa and the providing of adequate laws covering the AfCFTA Agreement and its Protocols, Investment Laws, Competition Laws and Intellectual Property Rights
Specific Roles FOR THE Legal PROFESSION
As lawyers or the legal profession, we do have specific roles to play to make AfCFTA Agreement work. These could be summarised as follows:
1. Firstly, we must ensure that the legal framework in our respective countries and indeed legal framework in all African countries to a larger extent is robust, comprehensive and supportive of the needs of entrepreneurs’ businesses and investments. This of course begs the question as to what are the needs of businesses, entrepreneurs and investors? The AfCFTA itself provides the umbrella legal framework as it is a legal document, but it is not enough if it just sits there without it being fully effective within the respective national borders of the African continent. These needs will include proper independent and effective Court systems within the entire African continent where commercial and investment claims will be fast-tracked, proper and effective Arbitration landscape to wit; National Arbitration Laws that are investor/ business friendly and Renouned African Arbitrators and Arbitration centres, a manifest ease of conducting businesses, proper and relevant laws, policies and regulations in all jurisdictions/countries within Africa, Better Dispute Settlement Mechanisms set up by AfCFTA, with proper enforcement mechanisms and/or a political will that surpasses everything, and generally speaking predictable business regulatory system.
According to ACEMOGLU ROBINSON and JOHNSON 2005 in their book ‘Institutions as a fundamental cause of long-term growth,’ ‘the legal environment and the institutions which comprise it determine to a considerable extent a country’s long-term economic performance’
With similar tenor ACEMOGLU AND ROBINSON re-emphasised in “The Role of institutions in growth and development” when they said –
‘A strong legal environment can stimulate private sector activity by giving security and predictability to property rights, creating regulatory stability necessary for long term decisions making whilst ensuring that free from excessive political control, capital and labour inputs are more effectively utilised’
All these can be subsumed under trade facilitation measures.
A number of aspects of a country’s legal framework or environment can have a particularly strong impact on the conduciveness and competitiveness of its business environment. It is a fact that both domestic and international investors can be encumbered by overly complex and unpredictable business regulations, tax rules, poor access to land, cumbersome processes for obtaining permits or licences, weak and inefficient courts and a general lack of information and transparency. The AfCFTA provides light in that it makes provision for:
- Intellectual Property Rights;
- Competition policy;
- The need to promote investment; and
- The need to promote Agriculture and Food security; and most importantly
- Embark on trade facilitation measures
but these must be translated into national laws, policies, regulations and the like.
Deficiencies in aspects such as those herein mentioned with respect to the legal frame work or legal environment would adversely affect businesses and the economy by raising the cost of market access or entry together with operational costs for Businesses and Investments, whereas strength in such framework or environment, would act as a signalling mechanism assuring entrepreneurs and investors of the rule of law and regulatory stability so much so as to enhance regulatory predictability and security from expropriation needed to justify extremely large capital investments where return on investments may be long before earning.
The legal framework or environment would encompass laws, policies, administrative, regulatory and other legal requirements that affect business operations. These may include reforming the tax regime, land legislations, trade facilitation registration procedures, arbitration laws etc.
Most significantly this without a shadow of doubt would require our legal profession working with law makers, policy makers, and other relevant stakeholders to develop a robust comprehensive and supportive legal framework that would promote businesses and investments. Such framework must be effective and efficient while at the same time beneficial to all well-meaning governments businesses and their employees as well as society at large. Africa by its composition presents a unique challenge in that we have Common Law traditions, Civil Law traditions, Roman-Dutch Laws tradition, OHADA law countries tradition as well as Islamic law countries tradition.
For AfCFTA to succeed, there must be harmonisation of laws and policies but It does appear to me that one of the challenges that would be coming up in the implementation of the Africa Continental Free Trade Area Agreement is the lack of harmonisation of laws and regulations across the continent. This creates uncertainty for businesses and investors and it undermines the potential benefits of the AfCFTA. Legal professionals will do well by working together to harmonise laws, policies and regulations across the continent to be in sinc With The AFCFTA Agreement requiring collaborative effort between lawyers from the Civil, Common and Islamic law traditions/ divide .
Secondly, specifically as a Legal Profession we must commit to improving capacities to handle the New and varying areas of laws and disciplines that now has alignment with AfCFTA and that will be coming up because of the AFCFTA. In this connection the AfCFTA Agreement being fundamentally a legal document emerging disputes are bound to emerge on the application and interpretation of the Treaty Document and this ultimately would require not only the Dispute Settlement Mechanism but professional competence of lawyers.
In the case of AfCFTA Agreement, the State Centric Character of the Dispute Settlement Mechanism was for good reasons tempered with the option of private arrangement through Arbitration.See Article 27 of the Protocol on the Rules and Procedures on the settlement of dispute . This to my mind means that private legal services are going to be required accordingly for advising clients on best conflict Resolution mechanisms to choose from to actually represent them adequately and Arbitration Practitioners can well have their say before arbitration tribunals.
Lawyers services will be required for the Interpretation of the text and operative protocols and Annexes to the Agreement.
Lawyers as gleaned from the above will be needed to advise Governments, Entrepreneurs, Business Investors and other parties in the understanding of the nature and scope of the Agreement.
Lawyers will also be needed to provide advisory support in key areas of Reform and Re-alignment given that a key feature of the AfCFTA is the removal of non-tariff barriers and regulatory harmonisation being one of the reasons why reforms will be so needed.
Like Standard Trade Agreements, actors under AfCFTA, will need to adopt contracts or agreements in order to operationalise the rights and liabilities created thereunder. Such contracts must of necessity be drafted by lawyers.
The adoption of AfCFTA necessarily implies that countries on the Continent will have to make adjustment in their laws in at least two (2) key ways:
- New laws will have to be passed to fill gaps on non-existent legislations;
- There may be need to improve on the existing Laws on competition, standards and intellectual property rights to align same with the ideals set by AfCFTA .
The above notwithstanding a latent challenge we face as legal practitioners is lack of capacity among legal professionals in many African countries. We call ourselves ‘learned’ but are we truly ‘learned’ when there is a paucity of those venturing to develop themselves across the emerging disciplines that are coming up and the laws associated therewith. Human rights advancement cannot be overemphasised as it is necessary at all times but it is no longer the only area for advancement and it is high time to venture into other relevant disciplines. The truth is that many African countries have shortage of trained professionals which would invariably limit our capacity to effectively implement AfCFTA Agreement. As a profession the passing of the AfCFTA agreement presents an opportunity for us to invest in capacity building to ensure we have the knowledge, technical knowhow and skills to support the implementation of AfCFTA. This would require firstly That African Universities offering Law Subjects begin to offer Courses that Deal with this subject Area of importance and that AFBA and reputable firms begin to provide scholarships, training and mentoring for young lawyers, encouraging the development of expertise in areas such as trade law, business law and other subjects that have a direct link with the agreement and its workings; promoting the exchange of knowledge and best practices across the continent.
In Conclusion , the legal profession has a vital role in building the legal framework around AfCFTA Agreement, and this would most invariably involve legal professionals working collaboratively to have proper legal framework set, harmonizing laws and regulations, investing in capacity building and no doubt promoting and upholding the Rule of Law and Good Governance. We must advocate for policies that promote transparency, accountability and inclusivity and also that AfCFTA is implemented in a manner that is beneficial to all.
By doing so we can ensure that AfCFTA delivers on its promise or dream of creating a prosperous and integrated Africa by 2063.
As we do, let me re-echo the words of Joe Jamail, who said –‘Our attitude will go a long way in determining Our success, Our recognition, Our reputation and our enjoyment in being a lawyer’
I say our African Society expects the best from us; Let us all as the Legal Profession in Africa live up the best in our Public Service to humanity.
I thank you all for your attention.