Even after AfCFTA, intra-Africa trade remains low. Harmonising IP administration could change this

Despite Africa's immense potential for economic growth and its vast natural and human resources, trade within the continent has remained remarkably low. From 2021 to 2022, Intra-African trade declined from only about 14.5 percent to 13.7 percent of global trade, according to the United Nations Economic Commission for Africa. This persistent challenge has long hindered Africa’s economic integration and development.  

A key component of the vision of the African Continental Free Trade Area (AfCFTA) is the harmonisation of intellectual property (IP) laws across Africa. The AfCFTA Intellectual Property Protocol (IP Protocol) establishes a strong foundation for cooperation. The AfCFTA IP Protocol seeks to create harmonised rules and principles for the promotion, protection, cooperation, and enforcement of intellectual property rights. By establishing a unified approach to IP rights, the AfCFTA IP Protocol can reduce significant barriers to intra-African trade and foster an environment that encourages innovation, investment, and industrialisation. 

Several factors keep intra-Africa trade low 

Intra-African trade has remained low due to several factors, including fragmented regulatory frameworks, limited infrastructure and high costs, non-tariff barriers, and over-reliance on external markets. African countries have diverse legal systems and regulatory frameworks and these disparities can often create barriers to cross-border trade, complicating compliance for businesses that wish to operate across multiple African markets. This fragmentation makes it difficult for companies, especially small and medium-sized enterprises (SMEs), to navigate different legal environments, reducing the incentive for intra-African trade. Inadequate infrastructure and high cost, such as roads, ports, and railways, significantly increases the cost of transporting goods across borders. High transportation costs and logistical challenges further discourage trade between African countries. Beyond tariffs, many African countries impose non-tariff barriers, such as differing standards, customs procedures, and licensing requirements, which add to the complexity and cost of doing business within the continent. Many African countries rely heavily on exporting raw materials to markets outside the continent, such as Europe, Asia, and the Americas. This dependence on external trade has limited intra-African economic exchanges and hindered the growth of regional value chains. 

The African Continental Free Trade Area which was established to address these challenges, aims to create the largest free trade area in the world by the number of participating countries, covering a market of over 1.3 billion people and a combined nominal GDP of $3.1 trillion in 2023. AfCFTA seeks to remove tariffs on 90% of goods, reduce non-tariff barriers, and promote the free movement of goods, services, and people across African borders. However, for this ambitious project to succeed, more than tariff reductions are required. A critical aspect of AfCFTA’s success lies in the harmonisation of intellectual property laws across Africa. Without a unified IP framework, businesses will continue to face challenges in protecting their innovations and creations when trading across borders, stifling intra-African trade. 

Harmonised Intellectual property administration could promote trade 

Intellectual property laws are essential for protecting innovations, brands, and creative works. These laws give creators and inventors exclusive rights to use their creations, preventing others from copying or exploiting them without permission. When businesses and innovators feel secure that their IP rights are protected, they are more likely to invest in new ideas, products, and services, which in turn drives economic growth. 

In the context of AfCFTA, harmonising IP administration can positively impact intra-African trade by simplifying cross-border trade, encouraging innovation and investment, fostering regional value chains, and protecting Africa's unique assets. The objective of the AfCFTA IP Protocol is harmonised rules and principles for the promotion, protection, cooperation, and enforcement of intellectual property rights. It outlines a specific aim to promote a harmonised system of IP protection throughout the continent. This can be fulfilled through the harmonization of IP administration across countries.   

A harmonised IP system will simplify cross-border acquisition of IP rights and enhance cross-border trade as African businesses will rely on a consistent framework for protecting their patents, trademarks, and copyrights across all participating countries. It would reduce legal uncertainty and encourage businesses to expand their operations into new African markets. A unified  system of IP administration would encourage innovation and investment by providing  seamless and timely protection for innovations, facilitating collaboration, and developing new products. This could in turn attract more investment, both from within Africa and internationally, as investors would view the continent as a more secure and stable market for IP-based industries.   

Cooperation on IP laws would also foster regional value chains, where different stages of production occur in various African countries. For example, an innovation developed in Kenya could be manufactured in South Africa, branded in Nigeria, and distributed across the continent, a collaboration that would be difficult without consistent IP protection. Africa is home to a wealth of traditional knowledge, cultural expressions, and biodiversity. Cooperation can help protect and commercialise unique products like traditional medicines, crafts, and agricultural goods, ensuring that benefits flow back to local communities. This would enhance Africa’s competitive advantage in global markets and boost trade within the continent. 

Unlocking Africa’s potential through IP law promotion, protection and cooperation 

While there are benefits of harmonizing IP administration under the AfCFTA, several challenges must be addressed. The diverse legal traditions, limited institutional capacity and balancing national interest are a few factors that hinder deeper integration. Africa’s legal systems are highly diverse, influenced by civil law, common law, and customary law. This diversity make it difficult to establish a one-size-fits-all IP framework that meets the needs of all African countries. Many African countries lack the institutional capacity and expertise to effectively implement and enforce IP laws. Building the necessary infrastructure, including IP offices, legal frameworks, and enforcement mechanisms, is critical to ensuring the success of deeper intra-African trade. 

Different countries prioritise different aspects of IP protection. For instance, some may focus on access to affordable medicines, while others prioritise protecting traditional knowledge or promoting local innovation. Achieving a balance between these competing interests will require extensive negotiation and compromise. 

To unlock Africa’s trade potential through harmonising IP administration, it is imperative to implement a system for cooperation on IP protection procedures, build capacity for IP enforcement, and promote public awareness of IP rights. A system for cooperation on IP administration would entail collaboration of the AfCFTA Secretariat with regional IP organisations such as the African Regional Intellectual Property Organization (ARIPO) and Organisation Africaine de la Propriété Intellectuelle (OAPI) towards creating a platform for seamless acquisition of IP protection. This would provide clear, consistent protection for intellectual property.  

Building capacity for IP enforcement is a crucial step in stemming counterfeits. African governments and international partners, such as the World Intellectual Property Organization, should continue investing in building the institutional capacity needed to implement and enforce IP laws. This includes training professionals that administer IP rights, establishing electronic platforms for easier acquisition of IP rights, and developing the necessary legal and technical infrastructure to support a functional IP ecosystem.  

Finally, promoting public awareness of IP rights is vital, especially as many African businesses, particularly SMEs, are unaware of their intellectual property rights or the benefits of IP protection. Governments and regional organisations should invest in public awareness campaigns to educate businesses and innovators about the importance of IP and how to protect their creations, and the benefits when engaging in intra-African trade.   

In summary, by cooperating in the administration of intellectual property, the expected benefits of the AfCFTA will be realised. The AfCFTA IP Protocol sets the tone and by creating a more predictable and secure environment for businesses, encourage innovation, we can foster the development of regional value chains and deeper African trade. While challenges remain, the harmonisation of IP administration could be the key to unlocking Africa’s trade potential and building a more integrated, prosperous continent. 

Charlene Musiza

Dr. Charlene Musiza is an Expert Fellow at Quantify Africa Initiative in the intersection of intellectual property (IP) and sustainable development, with a focus on leveraging IP frameworks to benefit small-scale producers in developing countries. Her research spans gender, innovation, branding, and traditional knowledge, with a particular emphasis on how appropriate IP rights can promote sustainable economic growth and empower marginalized communities.

Dr. Musiza holds a PhD in Intellectual Property Law from the University of Cape Town (UCT). She currently serves as a Postdoctoral Research Fellow with the DST/NRF SARChI Research Chair in Intellectual Property, Innovation, and Development at UCT, where she contributes to research aimed at aligning innovation and IP policy with developmental goals. She is also a member of the United Nations Office of the Special Adviser on Africa, Consultative Platform on Intellectual Property.

Her professional journey includes roles at the World Intellectual Property Organization, where she gained valuable experience at the intersection of international policy, IP management, and sustainable development. Dr. Musiza's expertise places her at the forefront of developing strategies that bridge intellectual property law and global development objectives.

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