I. The adoption of the AfCFTA marks a watershed moment in trade and commerce in Africa. Given its rather dismal performance in overall participation in global trade, Africa perhaps more than any other continent is in need of a strategic fine-tuning of its trading fortunes. The inception of the AfCFTA presents that opportunity for countries on the continent to leverage their respective commercial prospects while according each other unique preferential treatments on a reciprocal basis. Hailed as a game-changer by the IMF, the AfCFTA appears to have all the numbers looking in a positive direction in a manner that should inspire state parties to mutually uphold the obligations assumed under the treaty. For example, access to an expanded market of 1.3bn people with a combined GDP of $3.3T, business concerns on the continent stand to enjoy greater economies of scale like never before and the collateral investment opportunities that will likely accompany the opportunities of trade remain enormous.
II. The reality is that, while generally treated collaterally in the policy dynamics of many countries on the continent, trade has continued to gravely impact the economic fortunes of African countries. Recent xenophobic attacks against traders in different countries on the continent, and again against largely Nigerian traders and other foreign nationals in South Africa is illustrative of the passion aroused by perceptions of unfair trade and investment dynamics in Africa. In the absence of an agreed framework that places the commercial relations of states on a pedestal of reciprocity, richer countries will continue to attract economic migrants with the consequences of the kind experienced in South Africa.
III. In this paper, we briefly consider the issue of the opportunities presented under the AfCFTA for African lawyers in general and Ghanaian lawyers in particular, and how attorneys trained within the Ghanaian jurisdiction can harness the benefits of the AfCFTA for the benefits of their practice and respective firms. Before discussing the focus of the presentation however, Some issues of context can be looked at.
IV. As a regime, the AFCFTA adopts a model which fundamentally emphasizes the removal of tariffs on listed goods. The regime therefore seeks to ensure the free trade relationship between countries on the continent in a manner not constrained by the persistent challenge of the tariff barrier. The regime however also calls for the removal by countries of non-tariff barriers such as problematic and cumbersome administrative hurdles and obstacles that tend to impede the smooth flow of trade between countries on the continent.
V. The protocol on goods, which has been negotiated is complemented by other protocols key among which is the protocol on trade in services. The negotiated protocol on services focuses on 5 priority areas, namely, financial services, transportation, communication, tourism and business services. The inclusion of legal services remains a prospect that should both worry and excite Ghanaian lawyers given the complex ramifications involved. When included and optimally implemented, the removal of restrictions on the practice of law within the African region would imply that licensure restrictions would have to be removed or at least substantially modified to accommodate the open borders introduced in the wake of the AfCFTA. This would of necessity imply that there will be winners and losers in the nascent status quo and the extent to which Ghanaian lawyers adjust their circumstances will significantly determine their fortunes under the AfCFTA.
VI. In this regard, lawyers stand to derive certain key benefits from the AfCFTA and the potential inclusion of legal services under the liberalized market environment established under the AfCFTA could lead to the following work opportunities for lawyers:
a. Leading Dispute Settlements
Like all trading regimes, the AfCFTA presents huge opportunities for lawyers to tap into the enormous work to be generated under the dispute settlement system of the free trade zone established in Africa. Being fundamentally a legal document, emerging disputes under the AfCFTA are going to require a robust dispute settlement mechanism and professional competence. Given especially the fact that the state- centric character of the dispute settlement system is tampered with the option for private arrangements through arbitration, private legal services are going to be required to leverage the dispute settlement arrangements under the regime. Accordingly, from advising clients on best conflict resolution mechanisms to choose to actually representing them in any litigation, lawyers will have a range jobs to do along the spectrum of legal value chain of the dispute settlement system under the AfCFTA.
b. Interpreting the Text of the Agreement
A key service area that will be created and needed for the successful and effective implementation of the AfCFTA is the interpretation of the text and operative conventions of the Agreement. Being professionally adept at this, lawyers can benefit from advising governments, clients and other parties interested in understanding the nature and scope of the Agreement. The very nature of the AfCFTA coupled with certain suspicions surrounding the adoption of the Agreement implies that key issues such as the rules of origin, classification of “goods” and “ services” in addition to other conceptual subjects such as “ storability” and “intangibility” etc are likely to be contested and these will generate legal work in the nature of dispute settlement. Being an emergent regime implies that the opportunities for new interpretations and influencing the development of the rules and practices under AfCFTA are invariably going to be part of the evolution of the process.
c. Regulatory Reform and Cooperation Advisory
Firms in Ghana and Africa can leverage on the opportunities presented under AfCFTA by providing advisory support in key areas of reform and realignment including regulatory reform. Given that a key focus of the AfCFTA is the removal of non-tariff barriers, regulatory harmonization will be one of the key areas of reform in respect of which African countries will need to seek immediate to medium term interventions. Law firms are particularly suited to providing the services needed and the continuing need to ensure compliance and future cohesion implies that this will be one of the new fields of legal work that lawyers can benefit from or exploit for the foreseeable future.
Like standard trade agreements, actors under AfCFTA will need to adopt contracts or agreements in order to operationalize the rights and liabilities created thereunder. The creation of new templates and drafting of new agreement on an incremental basis presents real opportunities for lawyers to fill in within that niche space and provide the requisite services to existing and new clientele. Drafting services provide the needed impetus for the smooth growth of trade and is essentially facilitative in character given that often lawyers have the skill, acumen and understanding of context to draft appropriate agreements that helps facilitate the legitimate expectation of parties to given trade transactions.
e. Law Reform
The adoption of the AfCFTA necessarily implies that countries on the continent will have to make adjustment to their laws in at least two key ways; First, new laws will have to be written to fill the gaps in existing legal arrangements. Laws on competition, standards, and intellectual property among others will need to be written, adopted and enforced and the role of lawyers in this respect cannot be overemphasized.
These opportunities notwithstanding, the implications of the regime introduced by the AfCFTA for the legal profession are grave and the inception of a regime of open borders for lawyers and the legal profession in Ghana and Africa holds both promises and critical risk factors for lawyers. More specifically, firms in Ghana need to build appropriate capacities, leverage on the benefits of collaboration and develop strategic networks with other firms on the continent. From the regulatory standpoint, the AfCFTA regime itself will need to adjust rules on trade liberalization relative to services especially in the area of licensure issues and how to ensure that concerns on quality and other cross-national ethical considerations are dealt with before the full liberalization of the practice of law under the AfCFTA can be fully realized.