The East African, October 04, 2010

The fate of a law aimed at enabling the East African Community partner states to negotiate external trade agreements as one unit hangs in the balance in the face of apparent reluctance on the part of the implementing authorities.

The East African Trade Negotiations Act 2007 was signed into law by the heads of state of Kenya, Uganda, Tanzania, Rwanda and Burundi in 2008. However, it is yet to come into force.

As a result, each member state still has to send its own delegation to international trade negotiation forums and sign multilateral trade deals as individual countries.

This is despite the fact that the region has a Common External Tariff, which is binding on all the five partner states under the Customs Union.

The Council of Ministers, being facilitated by the East African Community Secretariat, was supposed to implement the Act.

However, both organs appear to be reluctant, with the Secretariat suggesting that the new law is unnecessary “since the region is already conducting trade negotiations as a bloc”.

“The fact that the Act has not been operationalised does not mean we are not doing joint negotiations,” said Peter Kiguta, the EAC Director-General in charge of Trade and Customs.

Mr Kiguta cited the signing of an interim Economic Partnership Agreement with the EU by the five EAC partner states in 2007 as proof that the region is negotiating external trade jointly.

He also noted that the EAC signed a Trade and Investment Framework Agreement with the United States in July 2008 (which came into force in February this year).

The framework establishes a Council that enables the region to “negotiate with the US as a community” on matters of trade and investment.

“We are already negotiating EPA together. And we now have a framework for joint trade negotiations with the United States. Why do we need a new Act for something that is already happening?” Mr Kiguta asked.

Among other things, the Act is expected to streamline the regional trade negotiations process by establishing the East African Joint Trade Negotiation Commission.

The commission, whose members would include ministers in charge of EAC affairs, trade ministers and three persons from each member state qualified in international economics, trade, law or policy, is supposed to conduct external trade-related negotiations at the regional and multilateral levels on behalf of the partner states.

It is also mandated with harmonising national trade positions into common negotiating positions. In addition, it is expected to propose a harmonised and coherent negotiating position for individual partner states in case the partner state is not involved in the same forum of trade negotiations.

It is also supposed to prepare a strategic and position paper on relevant issues relating to regional and multilateral negotiations affecting the partner states.

Speaker of the East African Legislative Assembly, Abdirahin H. Abdi disagrees with Mr Kiguta’s view.

“At any given external trade negotiation forum the EAC partner states engage in, we usually have five different teams of negotiators. Each member state still signs multi-lateral agreements as individual countries instead of signing as a bloc,” said Mr Abdi.

Why the delay?

He says he does not understand why the Bill has not been implemented. “The powers to implement Bills lie with the Council of Ministers. To date, they have not come back to us to tell us why this new Bill has not been implemented.”But according to Mr Kiguta, the Council of Ministers went through the Act yet again last year and concluded it could only be implemented if the parts requiring the Community to spend money on its implementation are removed.

This, according to Mr Kiguta, is because the Bill was a private member’s Bill tabled by two EALA members.

The Treaty for the Establishment of the EAC stipulates that Bills with financial implications should originate from the Council of Ministers.

He said the requirement under the Act that a joint Trade Negotiation Commission be established would create “an unnecessary and costly” parallel administration of trade-related issues, amounting to duplication of roles “since the new personnel will be doing duties already being done by the Secretariat”.

Civil society says the delay in implementing the Act are a major drawback for the community.

“The Act is a very important tool for the region. We need an East African body — with well-defined offensive and defensive interests — that will go through every trade proposal in the region with a toothcomb. Otherwise, we will only continue reacting to the European Union or China since we don’t have a joint policy of our own to engage them with,” said Oduor Ong’wen, the Kenya director of the Southern and Eastern African Trade Information and Negotiations Institute.

Victor Ogalo, trade and development programme officer at Consumer Unity and Trust Society’s Kenya office, attributed the failure by the EAC to implement the Act to fear of losing sovereignty on trade negotiations by member states. “These fears, real or imagined, are there,” he told a workshop in Nairobi recently.

He asked: “Why else would our presidents assent to an Act and two years down the line it has not been implemented?”

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