On May 30, 2019, the African Continental Free Trade Area Agreement secured the minimum threshold of 22 ratifications for its entry into force. Sierra Leone and the Saharawi Republic were the 21st and the 22nd ratifications, required under Article 23 of the AfCFTA Agreement, for it to enter into force thirty days after deposit of the twenty second deposit. The Chairperson of the AUC Commission, Moussa Faki Mahamat, hailed the two deposits as timely and significant steps towards removing the fragmentation of African economies and markets, a process that is likely to create a large market for trade and investments on the continent. To operationalise the AfCFTA Agreement, the signatories must be ready to adopt supporting instruments (such as rules of origin, schedules of tariff concessions on trade in goods, online non-tariff barriers monitoring and elimination mechanism, digital payments and settlement platform, and African Trade Observatory Portal) to facilitate the launch of the operational phase of the Agreement. This process has to be firmed up by an Extraordinary Heads of State and Government summit due to take place on July 7, 2019. It’s quite important, however, to stress that a strong and sustained advocacy to have all AU Member States sign and ratify the AfCFTA Agreement. Like the Paris Agreement, which entered info force on 4 November 2016, after securing the minimum threshold of 55 Parties to the Convention almost a year after its signing, the AfCFTA Agreement was signed in Kigali, on 31 March 2018, making it the second international instrument coming into effect in a shortest period of time in recent years. It is noteworthy that this free-trade area is the largest in the world in terms of participating countries since the formation of the World Trade Organization. The main objectives of the AfCFTA Agreement are to create a single continental market for goods and services, with free movement of business persons and investments, and thus pave the way for accelerating the establishment of the Customs Union. It will also expand intra-African trade through better harmonization and coordination of trade liberalization and facilitation and instruments across the Regional Economic Communities (RECs) and across Africa in general. The AfCFTA Agreement is also expected to enhance competitiveness at the industry and enterprise level through exploitation of opportunities for scale production, continental market access and better reallocation of resources. Another critically important incorporation of the AfCFTA Agreement is the recognition of data protection. For example, Article 6 states: “Nothing in this Protocol shall require any State Party to disclose confidential information and data, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.” Most importantly, Article 15(C, iii) of the AfCFTA Agreement stipulates that: “the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts”. While the rapid pace of technological development enables individuals all over the world to use new information and communications technologies to improve their lives, one cannot shy away from saying that technology can be used to do surveillance, interception and data collection, which may abuse human rights, in particular the right to privacy. Many organisations, for instance, owing to the threat of data breaches, which is prevalent, have adopted stringent measures against those who are found guilty of failing to take sufficient measures to secure their data. In Singapore, for example, the data protection law has one of the highest fines in Asia with each breach subject to a potential fine of S$1 million. Similarly, breaching Europe’s new General Data Protection Regulation can result in a fine of the larger of either 20 million Euro or 4 per cent of the organization’s global annual turnover. Although the AfCFTA Agreement doesn’t contain such administrative fines, it creates a clear obligation upon State Parties to protect personal data and to refrain from any disclosure of confidential information managed in a certain organisation. In fact, the AfCFTA Agreement comforms to UN resolution adopted on November 21, 2016, which recognises the importance of respecting international commitments in relation to the right to privacy. It underscores that any legitimate concerns States may have with regard to their security can and should be addressed in a manner consistent with obligations under international human rights law. Broadly speaking, data protection under the AfCFTA Agreement aims to recognize that more and more personal data is being collected, processed, and shared, which often happens without the individual’s free, explicit and informed consent. It requires State Parties to strengthen the prevention of, and protection against, such violations of personal data. Even if African Union Convention on Cyber Security and Personal Data Protection is yet to enter into force, the AfCFTA Agreement will relatively bridge the existing gap in protecting personal data. As Africa faces up to a range of technology-related Pandora’s box, signatories to the AfCFTA Agreement need to operate within a clearer set of digital standards, and must remain a primary consideration in this digital era. The writer is a law expert. The views expressed in this article are of the author.
