Examining the Footprints of the Agreement Establishing the African Continental Free Trade Area in Conformity with the Principle of Legality

Abstract

Law defines how freedoms are ensured, power allocated and rights granted. Nonetheless, in as much as freedoms, power allocation and rights are expressed in the form of law, they ought to conform to the conditions of the rule of law. One of these is the principle of legality, a consideration as to what law must be like to be called ‘law.’ The principle of legality is a concept which assesses clarity, prospectivity, intelligibility and most importantly, congruence between the former laws promulgated and the proposed ‘law.’ This paper assesses the African Continental Free Trade Area’s (AfCFTA) agreement, alongside its protocols on trade in goods and dispute settlement, with respect to the principle of legality. Specifically, the author examines four areas of the AfCFTA to analyse their level of compliance with this principle. These four areas of the AfCFTA, which are scrutinised under the principle of legality, are: 1) The level of congruence and prospectivity between the AfCFTA and former instruments (the Abuja Treaty, African regional economic communities (RECs) and multilateral agreements); 2) the prospectivity and clarity of the AfCFTA’s principle of flexibility; 3) clarity of the AfCFTA’s non-tariff barrier (NTB); and the prospectivity of the AfCFTA’s dispute settlement. In so doing, the author finds potential problems of redundancy, loosened connectivity, divergences, lack of clarity, impracticality and inefficiency within these four areas of the AfCFTA. Moreover, the author proposes solutions to bridge the gap.