AfCFTA: Ethiopia, Nigeria, & The New Multilateralism

AfCFTA: Ethiopia, African and the New Multilateralism

(updated to include aspects concerning Nigeria)

by Samuel Samiai Andrews?1

The Africa Continental Free Trade Area Agreement (AfCFTA) opens up multiplier fronts for African economies. AfCFTA could amplify Ethiopian IP rights because of the unique and rich un-monetized geographical indications resource within its boundaries would become an international and regional identifier. AfCFTA could create opportunities to increase African regional trade relationships in intellectual property (IP) driven products, while diversifying their national economy.[i][ii] It could foster national unity and douse cultural tensions.[iii] Therefore, Ethiopia should engage the rest of the Treaty member-nations from the earliest stages in negotiating Phase II of AfCFTA, particularly the IP protocol, which includes the leveraging of IP right of members for national economic growth.

AfCFTA and TRIPS

AfCFTA and member nations of the Treaty need to learn from the problems that the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), a similar trade and IP protection agreement created and raised.[iv] One of the concerns about TRIPS is the unequal playing field that developing economies are subjected to by the technologically Western advanced member nations of the treaty.[v] Most legal commentators have claimed that developed economies deploy the provisions of TRIPS to expand their dominant international trade objective.[vi] This occurs through ‘dumping’ and importing their IP driven goods into Africa and other less developed and developing economies. However, TRIPS from its neutral objectives developed into a tool for demand by strong and developed economies to developing and less developing economies to enhance their IP regimes as conditions to enter into bilateral trade agreement with these developing economies. Several scholars have justified this strategy as recognized by the TRIPS-Plus provisions in the Treaty.[vii] This article regards the reverse-multilateralism practices as a backdoor strategy by developed economies to maintain their competitive and productive advantages over their less-developed partners.

AfCFTA and African Cultural Forces

In Africa, most countries are at different stages of economy development. There are fewer larger and developed African economies comparatively within the continent. In negotiating the Phase II and IP protocol of AfCFTA, the member nations and their non-African partners should be conscious of the cultural, traditional and political stages of development of the Treaty members. For instance how would AfCFTA recognize the protection of folklore, genetic resources, traditional fashion, indigenous food products, and plants and other traditional cultural goods/expressions? Against the background that the global and some African IP communities have not fully agreed on the scope of proprietary rights for communal ownership of most indigenous communities.[viii] In negotiating AfCFTA IP protocol, member nations should not allow AfCFTA to encourage the undermining of its goals and objective of real Pan-African inter-nations trade and economic relations across the continent, which would impel and open centers of industrial innovation in member-nation states.

Ethiopian Digitized Cultural Proprietary Rights

For Ethiopia, this is a great moment to engage the global IP community starting with the AfCFTA IP negotiating to stimulate the innovative and creative resources that is deep in this East African nation.[ix] Ethiopia has not recognized nor signed major intellectual property Treaties.[x] Apart from human rights Treaties like the African Human Right Treaty, Ethiopia remains non-receptacle to IP rights multilateralism.[xi]

Ethiopian coffee, honey, [xii] Teff-Injera, Rose, and Cotton are few of the unique products peculiar to the region and naturally in abundance.[xiii] Ethiopia should take advantage of these rich natural food resources with an effective appellation and legal regime within its negotiating objective under AfCFTA.[xiv] Ethiopia and other African economies could scale up its productive capacity and diversify its revenue intake, while protecting the rights of its people through a combination of indigenous and contemporary laws under AfCFTA.[xv]

The Role of African Law Schools & AfCFTA

African law schools have an important role to play during the Phase II IP protocol negotiating and implementation of the outcomes or final documents. The effectiveness of the final documents would depend on African subject matter experts’ advisory services, which the African Law Schools are better position to render to their various nation-states.[xvi] The African Union (AU) and other partners negotiating the IP protocol should engage African subject matter experts in IP and international trade of various University Law Schools. Apart from getting an African jurisprudential perspective from these legal scholars and institutions, the African Law Schools would be at the frontline of training, educating and creating specialized curriculum for existing and upcoming legal professionals as efficient and effective partners in African Trade development.

For Nigeria

AfCFTA, Nigeria -Most Favored Nation, & National Treatment, 

In Africa, most countries are at different stages of economy development. There are fewer larger and developed African economies comparatively within the continent. In negotiating the Phase II and IP protocol of AfCFTA, Nigeria should be conscious of the cultural, traditional and political stages of development of the Treaty members. The problem of Dumping and Countervailing Duties are not only common in the context of the very developed economies of the West and or against the least developed or developing economies of the South. The Dumping problem may become a serious African regional trade issue if the stages of economic development among member states of AfCFTA is not taken into consideration as part of the negotiating pointers. To encourage proper and leveled inter-African trading characters, the Nigerian Office of Trade Negotiations (NOTN) should consider the adherence to the Most Favored Nations (MFN) and National Treatment (NT) regimes in implementing AfCFTA during this Phase II IP protocol negotiations. In Negotiating the Phase II the objectives of encouraging inter-regional trade should encourage Nigeria to persuade other members to buy into a robust MFN, NT and Countervailing Duties clauses. Nigerians and Nigeria will be able to trade in IP protected products protected in territories of other member states of AFCFTA without being unfairly and inequitably treated. [i] The principle of National Treatment generally means that Nigeria should treat intellectual property protected traded products or creations of AfCFTA member states as it would treat that of its citizens or nationals.[ii] This NT obligation should be based on reciprocity. Nigerian should insist on the inclusion of these clauses and a practical system to annually assess member states’ implementation.[iii]

AfCFTA and Nigerian Cultural Creative Forces

Nigeria should leverage this moment in history to engage AfCFTA to recognize the protection of its film (Nollywood), folklore, geographical indications, genetic resources, traditional fashion, indigenous food products, and plants and other traditional cultural goods/expressions as trade related IP rights' interest. With the background that the global and some African IP communities have not fully agreed on the scope of proprietary rights for communal ownership of most indigenous creations.[viii] In negotiating AfCFTA IP protocol, Nigeria should push for the attainment of the goals and objective of real Pan-African inter-nations trade and economic relations across the continent. The large continental market of Africa could set the pace for proprietary protection of indigenous food, innovative products. However, the Nigerian Office for Trade Negotiations (NOTN) should join other IP stakeholders to lobby for or promote the total overhaul and reform of Nigerian IP laws. For example, laws for Geographical indications, Trade secret, and electronic contracts do not exist in Nigeria. The traditional IP laws in the books: Trademark, Patent, Copyright and Industrial Designs suffer legal lag and needs amendment urgently.[iv] It is when Nigeria has good laws at home that she can stand a better chance of protecting her trade interest within Africa and globally.[v]

The Digital International Trade and Intellectual Property Approach

Digital era economies are powered by innovative technologies. In international trade, current legal regimes have adapted its forms to suit the contemporary means of production. For effective international and regional trade, Nigerians will depend on the power of cyberspace and the Internet. The imports and exports of food products largely now depend on digital means of distribution and its regulations. Therefore, NOTN in negotiating the IP Phase II protocols of AfCFTA should be conscious that Nigerian laws must comply with the digital spaces. Nigeria should encourage other member states of AFCFTA to recognize global trade and IP Treaties, which should be incorporated into AFCFTA regulations and protocols as it suits the African interest and objectives. This is a great moment to engage the global IP community starting with the AfCFTA IP Phase II protocols negotiations.

*i? Samuel Samiai Andrews, SJD is a Professor of Intellectual Property Law and USA Ambassador’s Distinguished Scholar, Ethiopia (ADSP) at the University of Gondar, School of Law, Ethiopia. He recently joined the faculty of the College of Law Prince Mohammad Bin Fahd University, Al Khobar-Dammam, Kingdom of Saudi Arabia. ? 2021, Samuel Samiai Andrews. All Rights Reserved. This article, which was published first in 2020 is solely the personal opinion of the author and does not represent that of any public or private institution the author is affiliated with.

[i] Jacques Berthelof, Most favored nation (MFN) clause, the Africa’s continental Free-Trade and the interim Economic Partnership Agreement of Ivory coast and Ghana, https://www.bilaterals.org/?most-favoured-nation-mfn-clause. Retrieved 30 April 2021

[ii] Brent Sadler, Intellectual Property Protection through International Trade, 14  Houston J. Int’l L. 393 (1992).

[iii] Zhen Kun and Wang and L. Alan Winter, Africa’s Role in Multilateral Trade Negotiations, https://ssrn.com/abstact=620570, Retrieved 30 April 2021

[iv] Thomas H. Koenig & Michael L. Rustad, Global Information Technologies : Ethics And The Law 21-36 (St. Paul, Minnesota: West Publishing, 2018) (describing legal lag as when legal institutions fail to keep up with the changing social and cultural conditions of society and quoting Justice Benjamin Cardozo posit that law must continually evolve to deal with the emergent social realities); See also, Benjamin Cardozo, The Growth Of The Law 19-20 (New Haven, Connecticut: Yale University Press, 1973) (emphasizing that “the inn that provides shelter for the night is not the journey’s end. The law, like the traveler must be ready for the morrow. It must have a principle of growth”).

[v] Samuel Samiai Andrews, Why it pays to link products to places - and how African countries can do It, https://theconversation.com/why-it-pays-to-link-products-to-places-and-how-african-countries-can-do-it-151511 Retrieved 30 April 2021

 See Vera Songwe, A Continental Strategy for Economic Diversification through the AfCFTA and Intellectual Property Rights, Brookings (January 8, 2020), https://www.brookings.edu/research/a-continental-strategy-for-economic-diversification-through-the-afcfta-and-intellectual-property-rights/; Brookings, Foresight Africa: Top Priority for the Continent 2020-2030, Brookings Institute (January 8, 2020), https://www.brookings.edu/multi-chapter-report/foresight-africa-top-priorities-for-the-continent-in-2020/

[ii] World Intellectual Property Organization, Indigenous Community Goes Digital with High Tech Support From WIPO, (August 5, 2009), https://www.wipo.int/pressroom/en/articles/2009/article_0030.html

[iii] Ruth Okediji, Legal Innovation in International Intellectual Property Relations: Revisiting Twenty-One Years of the TRIPS Agreement, 36 U. Penn Int’l L. 101 (2014) (https://ssrn.com/abstract=2591531)

[iv] Ruth Okediji, The Limits of International Copyright Exceptions for Developing Countries, 21 Vanderbilt J. Entertainment & Technology L. (2019).

[v] Id.

[vi] Okediji, supra note iii

[vii] Samuel Samiai Andrews, Reconceptualizing International Copyright Law to Protect African Creative Industries, 1OAU L.J. 217 (2018).

[viii] World Intellectual Property Organization, The Coffee War: Ethiopia and the Starbucks Story,   https://www.wipo.int/ipadvantage/en/articles/article_0082.html; see Wendy Wendland & Jessyca V. Weelde, Digitizing Traditional Culture, WIPO Magazine (June 3, 2008); https://www.wipo.int/wipo_magazine/en/2008/03/article_0009.html

[ix] Justin Hughes, The Limited Promise of Geographical Indications for Farmers in Developing Countries in Geographical Indications At The Crossroads Of Trade, Development, And Culture-Focus On Asia-Pacific 66-86 (Irene Calboli & Wee Loon Ng-Loy, Eds., Cambridge University Press, 2017); see Paul Schemm, How Ethiopia Got Its Grain Back, The Washington Post (February 7, 2019), https://www.washingtonpost.com/world/2019/02/07/how-ethiopia-got-its-grain-back/; Michael Blakeney & Getachew Mengistie, Geographical Indications in Africa: Opportunities, Experiences and Challenges, The University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093

[x] Takele Soboka Bulto, The Monist-Dualist Divide and the Supremacy Clause: Revisiting the Status of Human Rights Treaties in Ethiopia, 23 J. Ethiopian L. 132 (2015), https://ssrn.com/abstract=1408842

[xi] Antointee Ladaroia, Ethiopia’s Admission into the League of Nations: An Assessment of Motives, 8 Int’l J. Afr. Hist. Stud. 601-622 (1975).

[xii] Ethiopian has a deep reserve honey especially White honey

[xiii] Paul Schemm, How Ethiopia Got Its Grain Back, The Washington Post (February 7, 2019), https://www.washingtonpost.com/world/2019/02/07/how-ethiopia-got-its-grain-back/

[xiv] Irene Calboli, Time to Say Local Cheese and Smile at Geographical Indications of Origin? International Trade and Local Development in the United States, 53 Hous. L. Rev. 373 (2015); see also Ruth L. Okediji, Back to Bilateralism? Pendulum Swings in International Intellectual Property Protection, I. U. Ottawa L. & Tech. J. 125 (2004); Keith F. Maskus, Intellectual Property Rights in the Global Economy 239 (2016); see also Dev Gangjee, Relocating the Law of geographical Indications (2015); see e.g., Research Handbook on Intellectual Property and Geographical Indication (Dev S. Gangjee, ed., 2016); Teshager Dagne, The Identity of Geographical Indications and their relations to Traditional Knowledge in Intellectual Property Law,54 Idea 255 (2014); Michael Blakeney & Getachew Mengistie, Geographical Indications in Africa: Opportunities, Experiences and Challenges, The University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093; Michael Blakeney & Getachew Mengistie, Geographical Indications in Africa: Opportunities, Experiences and Challenges, The University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093; Kirti Singh, Geographical Indication as a Tool for Protection of Traditional Knowledge with Special Reference to Protection of ‘Cashmere’ in Kashmir, https://ssrn.com/abstract=2115257.

[xv] See Tekeba Nega & Yeshitela Eshete, Review of Ethiopia’s Global Position in Honey and Other Bee Product Production and Marketing: Analysis of Sectoral Opportunities and Limitations, 10 Biomedical J. Scientific Tech. Rch. 1-5 (2018), https://www.researchgate.net/publication/331037935_Review_of_Ethiopia's_Global_Position_in_Honey_and_Other_Bee_Products_Production_and_Marketing_Analysisof_Sectoral_Opportunities_and_Limitations; see also Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration, October 31, 1958, as revised, July 14, 1967, 923 U.N.T.S. 205 [hereinafter Lisbon Agreement], www.wipo.int/treaties/en/text.jsp?file_id=285856/; World Intellectual Prop. Org. [WIPO], Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications and Regulations under the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, WIPO Document LI/DC/19 (May 20, 2015), [hereinafter Geneva Act], www.wipo.int/meetings/en/details.jsp?meeting_id=35202. ; see also TRIPS Agreement, art. 22. 2 & art. 23.1; Lisbon Agreement, art. 5 (1), Oct. 31, 1958, 923 U.N.T.S. 205 as revised at Stockholm July 1, 1967 and as amended on Sept. 28, 1979; see further Daniel Gervais, A Look at the Geneva Act of Lisbon Agreement: A Missed Opportunity? in geographical indications at the crossroads of trade, development, and culture-focus on Asia-pacific 122-144 (irene calboli & wee loon ng-loy, eds., Cambridge university press, 2017).

[xvi] Id.