Going solo: The Free Trade Agreement puzzle

Uhuru
Uhuru

What you need to know:

  • Disapproval has since manifested itself in the recent lawsuit presented to the East African Court of Justice.

Kenya’s unilateral move to pursue a Free Trade Agreement (FTA) with the US triggered criticism from its fellow East African Community and the African Union members.

Disapproval has since manifested itself in the recent lawsuit presented to the East African Court of Justice.

The announcement of the bilateral negotiations in February led to many prominent figures, including the former deputy chairperson of the AU Commission, Erastus Mwencha, to caution against the deal, saying “bilateral free trade negotiations with third parties because they jeopardise the AfCFTA”.

Mr Mwencha’s position is premised on the idea that Kenya would have struck a better deal had it coordinated with its fellow AU members.

The legal frustrations surrounding the deal are two-fold. The first predicament emanates from Article 37 4(b) of the EAC’s Customs Union Protocol that addresses “Trade Arrangements with Countries and Organisations Outside the Customs Union”. Member states are required to send the EAC secretary-general the terms of third party deal for review.

But Kenya’s pursuit of an FTA cannot amount to a substantive deviation of EAC rules; the Customs Union Protocol does not proscribe bilateral trade deals with non-EAC parties.

What is debateable is the impact of the “comments” — whether such reservations have the power to override a deal. The Article is ambiguous and highlights loopholes in Africa’s regional trade rules.

The second hurdle is tethered to Article 37 of the Common Market Protocol, “Coordination of Trade Relations”, which the US-Kenya FTA seems to contravene as EAC partner states were not engaged.

However Kenya navigates the concerns of the EAC whilst maintaining its AfCFTA obligations before its fruition in 2021, its actions are likely to have consequences for its standing on the continent.

Ms Kamau is final year law student at Riara University. [email protected]