Analysis

Now that the commencement of AFCTA has been postponed in view of the COVID-19 pandemic, there is a need for a clear conceptualisation of flexibility in relation to the commitments and obligations created in African RTAs including the AFCTA. There is also a need to identify how some narratives that are subsumed in the flexibility paradigm may end up doing more harm than good to informal trade engagements in the continent.

In this blog, using the First City Monument Bank (FCMB) solar initiative as a case-in-point, I attempt a pragmatic and actionable framing of the sustainability transition of Nigeria within the Covid-19 context.

In contemporary Africa, the judicialization of presidential elections between incumbents and challengers in courts is becoming increasingly visible. In at least two instances within the last three years, courts have overturned presidential elections. In addition, an increasing number of non-gubernatorial electoral disputes are being judicialized in national and international courts. There are examples from Malawi, Zambia, Nigeria and Kenya.

In January 2020 when I first read Nigeria’s Finance Act 2019, one of the instinctive questions that came to me was “is Nigeria serious about taxing digital trade now”? There were a few reasons for this skepticism. First, the Act seeks to tax nonresident companies (NRCs) that have a “significant economic presence” (SEP) in Nigeria but then delegates the definition of that pivotal phrase. Second, I questioned how Nigeria can enforce/administer this unilateral tax, which is payable by companies outside its borders. Third, I imagined that Nigeria’s unilateral attempt to tax digital trade could undermine relations with a strategic economic, and political partner, the US. Nigeria has now crossed the first hurdle of defining SEP – no doubt, a meaningful step forward – yet, there remains much to process before Africa’s biggest economy can begin to milk the digital cow.

Traditional medicines have an equally important role as vaccines, therapeutics and medical devices protected through classical IPRs such as patents. For this reason, it is important to include traditional medicines within the scope of IPR protection, including within the WTO’s TRIPS Agreement. Doing so would go beyond the classical debate of protecting medicines, vaccines and therapeutics mainly through patents as currently understood within the TRIPS Agreement.

As all the services carry the risk of financial crime such as money laundering and terrorism financing and risks to users (investors such as those investing through crowdfunding) regulation is key. Rather than regulate them out of existence, however, African economies should embrace a regulatory friendly approach to their operation which would be vital to: provide SMEs and individuals access to finance; kick start economies; create jobs and set Africa on the trajectory of growth again post the Covid-19 crises.

governments need to ensure that the interventionary measures they seek to implement must be tempered with and evaluated against the special needs and dynamics of their countries. The fragility of our economies, the growing debt levels, the development challenges they pose, and the social and economic vulnerability of a significant segment of our populations ought to be important considerations in developing response and containment measures against Covid-19.

On 22 April, the President of Madagascar Andry Rajoelina, launched what he called a cure for coronavirus, Covid Organics (CVO). The announcement drew interest from a few African countries and to date countries like Tanzania, Guinea Bissau, The Gambia and Senegal have already received shipment of CVO. While some have been sceptical about the remedy, others have praised it as an example of traditional medicine, reigniting a discussion around traditional medicine and intellectual property rights.

The question of a regulatory framework for this type of CSR at the African Union level is paramount. Such regulatory frameworks could be meta-regulatory in nature and thus embrace a mix of soft law and hard law rules with incentives. This need for policy and regulation is recognised in the African Union Agenda 2063 framework document both in order to effectively finance development objectives and to enable full exploitation of the partnership capabilities in the interest of Africa. The African Union has also pursued this set goal for agribusiness as a result of the Malabo declaration on accelerated agricultural growth commitments

In addition to BITs and IP laws, the Nigerian government can rely on the international law principle of necessity to justify taking measures such as compulsory licencing, yet the successful use of this principle depends on satisfying various conditions. Meanwhile, applicability of the customary doctrine of police powers to the claims arising under BITs has been accepted. This means that ISDS tribunals should thus attach normative propriety to state regulation in an epidemic.