The African Continental Free Trade Area (AfCFTA) which forms part of Agenda 2063, has the potential to boost intra-African trade by eliminating tariffs and non-tariff barriers, and ultimately reducing poverty in Africa. The AfCFTA agreement covers trade in goods and services, investment, intellectual property rights (IPRs), competition policy and e-commerce.

AfCFTA timeline

In January 2012, the Assembly of Heads of State and Government, established by the African Union (AU), decided to fast-track the establishment of an African Continental Free Trade Area (AfCFTA) to boost intra-African trade.

In March 2018 the African leaders adopted and signed the agreement establishing AfCFTA.

As at August 2024, 48 out of 54 African countries have ratified the AfCFTA agreement, and are now member States of AfCFTA. Only member States have rights and obligations under the AfCFTA agreement.

What are AfCFTA’s objectives?

The general objective of AfCFTA is to create a single market for goods and services, thereby promoting intra-African trade. The agreement mandates member states to cooperate on investment, intellectual property rights (IPRs), competition policy and on other trade-related aspects. The success of AfCFTA is largely dependent on negotiations and cooperation between member states.

The AfCFTA negotiations take place in phases namely, Phases I, II and III.

Phase I covers protocols on trade in goods and services, and rules and procedures for the settlement of disputes;

  • Phase II focuses on protocols for IPRs, investment and competition policy; and
  • Phase III addresses the protocol for e-commerce.

In February 2023, the AU adopted the Phase II protocols, which will become an integral part of the AfCFTA agreement and will enter into force once ratified by at least 22 member states.

How will the IPR objectives be achieved?

The protocol on IPRs seeks to establish harmonised rules and principles for the promotion, protection, cooperation, and enforcement of IPRs. Most provisions of the protocol adopt a general approach, emphasizing the commitment of member states to provide protection for a wide range of IPRs, while considering the developmental aspirations of the African continent. Specific details and obligations are deferred to annexes that will be developed and negotiated by member states, and which will then form part of the protocol once adopted. Pending further negotiations, the protocol seems to focus on cooperation, rather than the replacement of, for example, intellectual property laws in the different African countries. This is not surprising given that IPRs are generally territorial in nature.

It remains to be seen how the annexes will deal with the implementation of the protocol to enable member states to harness the benefits of IPRs for promoting intra-African trade. At the moment it is uncertain whether the negotiations will lead to the establishment of an AfCFTA Intellectual Property Office, and whether this will resemble the African Regional Intellectual Property Organization (ARIPO), Organisation Africaine de la Propriété Intellectuelle (OAPI) regional model, or a hybrid IPR model that would be flexible enough to allow the different African countries to cooperate in terms of non-binding IP guidelines and recommendations.

亚洲知识产权组织 provides for regional registration and administration of IP rights through a central office, while designating the ARIPO member states in which protection is sought. This permits member states to deal with IPRs according to their national IP laws and using their own offices, simplifying IPR protection for applicants wishing to invest in the region. Unlike in ARIPO, IPR registration in OAPI automatically extends to the entire region comprising all 开放API member states, in an ‘all-or-nothing’ approach. All the OAPI member states deal with IPRs according to the same legislation, established by the Bangui Agreement.

Ideally, the final IPR protocol should take into account existing IPR instruments, avoid replication and, most importantly, include sufficient detail to facilitate implementation and ensure that the overarching objectives of AfCFTA agreement can be met.

The creation of AfCFTA provides a unique opportunity to integrate African countries, boost intra-African trade by eliminating tariffs and non-tariff barriers, and reduce poverty across the continent.