Introduction
Nigeria submitted its instrument of ratification of the African Continental Free Trade Area (“AfCFTA”) Agreement on 5th December 2020. We will examine whether such accession immediately creates obligations for the Nigerian government under the AfCFTA. We will also consider the international obligations that arise from the accession and to what extent these obligations are justiciable.
Nigeria, a Dualist Pupil
Nigeria practices the dualist approach, which demands that treaties shall not constitute domestic laws unless they are enacted into law by the National Assembly in fulfilment of Section 12 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (“the Constitution”).
The ratification of a treaty is usually carried out by the Federal Executive Council (FEC) which is headed by the President. This same procedure was adopted by the FEC as it ratified the AfCFTA. This should be followed by the domestication of the agreement by the National Assembly.
Implications of Ratifying & Domesticating a Treaty
Once a country signs a treaty, it is obliged under international law to refrain from any act which could defeat the object or purpose of the treaty until it formally revokes its signature. That a country is yet to domesticate a treaty into its local law does not shift its obligation with respect to the international framework.
Therefore, Nigeria’s ratification of the AfCFTA implies that it has an obligation to uphold the tenets of the AfCFTA.
However, domestication of a treaty is particularly important because of the applicability of the provisions of the treaty in domestic courts. Furthermore, domesticating a treaty into local law makes provisions of such treaty justiciable in that jurisdiction. For instance, the African Charter which was domesticated by the first National Assembly of Nigeria in 1983 did not only make justiciable some provisions of Chapter II of the defunct 1979 Constitution that were hitherto non-justiciable, but also constitutes the legal basis for the enforcement of people’s rights in Nigerian court since neither the 1999 Constitution or any other law in force in Nigeria makes provision for the enforcement of people’s rights.
Thus, in order for Nigerian courts to adjudicate over AfCFTA-related matters, the AfCFTA must be enacted into law by the National Assembly. This was iterated in the case of Abacha v. Fawehinmi (2000) 77 LCRN 1261 – 1262 where while interpreting section 12 of the Constitution, Nigeria’s Supreme Court echoed:
“An international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the National Assembly. An international treaty has no such force of law as to make its provisions justiciable in our courts.”
Therefore, while treaty-making is the responsibility of the executive arm of government in Nigeria, the subsequent intervention of the legislative arm in domesticating the treaty is mandatory for its implementation in the national courts.
It should be noted that the justiciability of certain obligations under the AfCFTA when violated may pose difficulty due to the general architecture of the Agreement. For example, non-compliance with obligations in trade agreements usually revolves around measures by governments such as import restrictions or discrimination in favour of domestic firms, which impact on private parties involved in transactions relating to trade. These private parties cannot file applications under the AfCFTA Dispute Settlement to protect their rights. Clearly, the approach adopted under the AfCFTA implies that private parties will only be protected if a State Party is able to show that its right has been violated and would bring a claim, as most World Trade Organisation (WTO) members do.
Obligations Arising
Some of the obligations that arise as a result of Nigeria’s accession to the AfCFTA will be discussed in quick succession.
Most-Favoured Nation (MFN) Treatment
One of the key obligations of the Agreement of the AfCFTA (“the Agreement”) is the most-favoured nation (MFN) treatment as provided under Article 4 of the Agreement. With respect to the Protocol on Trade in Goods (“the Protocol”), the objective is to extend preferences between State Parties on the African Continent. Therefore, if one State Party introduces a measure which provides a benefit to services and service suppliers of any third country, that benefit should be extended to all State Parties.
Transparency
The transparency obligation under Article 5 of the Agreement provides for the obligation of State Parties to promptly publish all relevant trade measures in a medium that is accessible, like through national gazettes, newsletters. This is in consonance with the provision on the General Agreement on Trade in Services (GATS).
Mutual Recognition
The Agreement provides that a State may recognize the education or experience obtained, requirements met, or licenses or certifications granted in another State Party, so long as this is not organized in a manner that would constitute a means of discrimination between State Parties. Mutual recognition of professional qualifications is a key business interest for those involved in the supply of professional services. The Agreement makes it a mandatory obligation for State Parties to mutually recognize academic, professional and technical qualifications of their nationals to promote the movement of persons among the AU member States.
Anticompetitive Practices
The Agreement generally provides for basic general obligations on State Parties to ensure that monopoly and exclusive service suppliers do not engage in anticompetitive practices, and to open consultation channels with other State Parties with a view to eliminating such practices. Articles 11 and 12 are the same as GATS Articles VII and IX.
Conclusion
Notably, the preamble of the Agreement supports domestication wherein it affirms the right of State Parties to regulate within their territories in order to achieve legitimate policy objectives in areas including health, safety, environment, public morals as well as the promotion and protection of cultural diversity.
We therefore recommend that the National Assembly proceed with the domestication of the Agreement. This will afford the Nigerian legal system the necessary benefits which it ought to derive from a ratified but undomesticated treaty
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