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AfCFTA Protocols on intellectual property rights (IPR), competition policy, and Investment Adopted: The Draft Digital Trade Protocol is Circulated – EFA Submits its Comments.

The AfCFTA Secretariat is required to set down rules and guidance for the member states in the form of Protocols. These usually specifically require some approximation of national laws in order to achieve a ‘level playing field’. The process is as follows – the AfCFTA Secretariat drafts and negotiates these protocols with the member states, and the final drafts are presented to the African Union Ministers for approval. The 36th ordinary Session of the AU Assembly on 16-18 Feb adopted three draft protocols – on investment, intellectual property rights and competition policy paving way for their implementation. The move signals conclusion of the AfCFTA Phases I and II protocols that provide a legal basis for the start of trading and gives members the greenlight to adopt the protocols in their national laws.

Meanwhile, the AfCFTA Secretariat circulated a “Zero Draft” of the Digital Trade Protocol in Feb to the member states. This is a good, solid document, broad in scope, and clear in that the signatories will have to harmonise their legislation. EFA expressed some concern that the provisions were too broad, therefore creating possibilities for misinterpretation. For example the provision on data protection demands that member states have privacy legislation without much more detail; however, there is mention elsewhere of ‘consent’ without any definition. Presently customer data collected “in the process of a sale” is considered to have been given with consent to ecommerce companies (the “soft opt in”). We don’t want to lose that benefit simply due to a failure to define terms. EFA has been working with the other ecommerce associations and with contacts in various states to introduce the changes we need.

EFSA, meanwhile, was invited by Business Unity SA as its expert on a Nedlac Trade and Industry Committee on 17 Feb at which the Protocol was discussed. The SA DTIC now has our views in preparation for the next round of negotiations in March.

EFSA also asked the DTIC to reconsider joining the WTO committee on ecommerce (JSI), given that many African countries have now joined and that that Committee’s work has informed the AfCFTA’s drafting.

Alastair Tempest

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