Presentation on theme: "Legal Instruments for Trade and Transport Facilitation for Africa:"— Presentation transcript:
1 Legal Instruments for Trade and Transport Facilitation for Africa: AN ASSESMENT OF THE STATUS OF IMPLEMENTATION OF AGREEMENTS TOWARDS A CONTINENTAL FREE TRADE AREAPrepared for UNECA Experts Group MeetingJuly 15, 2013Addis Ababa, EthiopiabyOMETERE OMOLUABIConsultant on Trade and Transport
2 Content Objectives/Purpose of Study Methodology and Scope Study HighlightsSpecific Findings by TopicMaritime and Port FacilitiesHarmonization of Customs Procedures and DocumentationCustoms Transit Guarantees and BondsThird Party Motor Vehicle Insurance SystemsTrade LiberalizationFree Movement of PeopleCorridor Management InitiativesTransit for Landlocked CountriesInterstate Road TransportKey Reasons for non-Implementation of Legal InstrumentsRecommendations for Improving Implementation of Legal Instruments Conclusions and General Recommendations
3 1. IntroductionStudy Objective: Assess the implementation of legal instruments and agreements made on trade and transport for Sub-Saharan Africa (SSA) at the international, continental and sub-regional levels. Why: Provides a baseline for evaluating progress and recommendations for harmonizing legal instruments towards a Continental Free Trade Area (CFTA).Highlight key policies with the greatest potential to facilitate tradeTo identify the causes of poor implementation; andPropose solutions to overcome the difficulties and to reflect on their possible harmonization.
4 Methodology:Desk Review of existing compendium of legal instruments (2012) completed by SSATP/UNECA/AU/AfDBDeveloped separate questionnaires for interviews with relevant departments within RECs, Member States (implementers) and Others (private sector, civil society, etc)Evaluation of Implementation of legal instruments by status of Signing, Ratification, Promulgation in national law, and actual practiceComparison of international best practices with regional practiceRECs surveyed : COMESA, EAC, ECCAS, ECOWAS, SADCWith a fewhighlings from other sub-groupings such as UEMOA and CEMAC
5 2. Study HighlightsImplementation of legal instruments is occurring at varying degrees through several regional, national and bilateral efforts, creating a challenge for convergence towards the Continental Free Trade Area (CFTA).Dissemination of the rules set forth by legal instruments in addition to monitoring and evaluation of their implementation has been neglected, therefore resulting in poor information for implementers and end- users.Uninformed private sector results in non-compliance and lack of trust in the regional systemsPoor coordination and communication between RECs and Member States also accounts for a decent percentage of poorly implemented instruments.The private sector also reports the lack of political will of their national governments as the greatest impediment to trade and transport facilitation.From interviews, transport business owners in East Africa stated that policy updates are usually made available via notifications from the government or through the media; however, it is usually insufficient or does not reach the majority of users. In some cases, poor information results in poor planning and inability to predict transport costs and delays along corridors. An informed private sector will have the power to drive change or advocate governments to implement rules evenly.
6 3.1 Maritime Port Facilities Some progress has been made with regards to adoption of key maritime conventions, such as the London Convention on facilitation of international maritime traffic (22 of 114 contracting states are in SSA).CEMAC made the most visible attempt at incorporating international best practices in maritime transport into the CEMAC Shipping Code.Other countries also became party to the Abidjan Maritime Charter of ECOWAS and the 1977 Accra Convention on the Institutionalization of the Ministerial Conference on Maritime Transport.
7 Maritime Port Facilities: Challenges to Implementation Poor infrastructure and low use of ICT for electronic data sharing, as recommended in international conventionsLow volumes of maritime transport continent-wide, fewer investments have been made in this regard.However, there are serios challenges
8 MEMBERSHIP OF SSA STATES TO KEY LEGAL INSTRUMENTS GOVERNING MARTIME TRANSPORTCOUNTRY1961 Brussels Convention on carriage of passengers by sea1965 London Convention on facilitation of international maritime traffic1974 Athens Convention on Carriage of passengers and luggage by sea1976 London Convention on limitations of liability for maritime claims1978 Convention on the Carriage of Goods by Sea (Hamburg Rules)1991 Vienna Convention on the Liability of Terminal OperatorsBeninBurkina FasoBurundiCameroonCape VerdeCongoCongo DRCCote d’IvoireEgyptGabonGambiaGhanaGuineaKenyaLesothoLiberiaMauritiusMadagascarMaliMalawiMoroccoNigeriaSenegalSeychellesSierra LeoneTanzaniaTunisiaUgandaZambia
9 3.2 Harmonization of Customs Procedures and Documentation Way Forward:The WCO has encouraged its Members to accede to the revised Kyoto Convention as it provides additional benefits, especially in early accession, including the “announcement effect” which has positive implications of being certified as having international customs standards in place. It also provides an advantage versus non-contracting parties in trade negotiations and capacity building.Countries which have not acceded to key WCO conventions such as the Revised Kyoto Convention.WCO and other international agreements on Customs Procedures;WCO: 1973 Kyoto Convention; transparency and predictability of customs controls; standardization and simplification of the goods declaration and documentation; useof ICT to ensure compliance and risk management.1977 Customs Convention on Mutual Administrative Assistance1982 Geneva Convention on Harmonization of Frontier Control of GoodsWCO: Harmonized Commodity Description and Coding System (HS Convention)WCO: ATA Convention on temporary admission (Istanbul ConventionWCO: Arusha Declaration on Customs IntegrityWCO: SAFE Framework of Standards to Secure and Facilitate Global Trade
10 3.3 Transit Bonds and Guarantees All RECs have integrated transit guarantees into regional requirements for transport of goods, however, only COMESA and SADC have shown significant progress in implementation.COMESA has recently implemented the Regional Customs Transit Guarantee (RCTG), which is operated via insurance companies, and has shown to be a reliable model, subject to its sustainability.The private sector is generally content with the guarantee system within SADC.ECOWAS, through the Inter-State Road Transit (ISRT) Convention instituted a Guarantee Scheme, however, the private sector remains frustrated with having to obtain a new bond for every country in the transit journey.The 1975 Geneva Customs Convention on the International Transport of Goods (TIR Convention) requires that goods travel in secure vehicles or containers, and duties and taxes at risk be covered throughout the transit journey by a regionally recognized guarantee. It also calls for mutual recognition of guarantees and transit documentation by regional bodies. Like the CMR, the TIR, was not popular in SSA, however, it served as a basis for some regional conventions, such as the Northern Corridor Agreement. The TIR Convention, ratified by only Liberia in SSA, calls for the simplification of formalities for international transport, especially at borders.
11 ObjectiveFacilitate transit and establish harmonized regional transit guaranteesInternational Legal InstrumentTIR Convention; Goods should travel in secure vehicles or containers; Duties and taxes at risk should be covered throughout the journey by a regionally recognized guarantee; Goods should be accompanied by a regionally accepted Carnet taken into use in the country of departure and accepted in the countries of transit and destination; Customs control measures taken in the country of departure should be accepted by the countries of transit and destination.RECsInstrumentKey ElementsEvaluation/ChallengesECOWAS1982 Convention A/P 4/5/1982 Inter-State Transit Convention (Lomé)Inter-state Road Transit Guarantee Scheme (ISRT)The Inter State Road Transit (ISRT) Convention prescribed that goods being transported within ECOWAS be covered by a declaration document, otherwise known as the ISRT logbook. Embraces the TIR Convention system, however, its application in the region is faulty.CEMAC2010 CEMAC Regulation No. 07/10-UEAC-205-CM-21 establishing regulation on legal regime of community transit and mechanism of a single security or guaranteeThis instrument seeks to facilitate transit within CEMAC states by providing a mechanism for guarantees to secure payment of debt that may arise during transit. It outlines the rights and obligations of parties and steps to be taken to constitute a guarantee.The CEMAC attempt at regional guarantees has not been successful till date.The logbook is the standard document which, however, Member States may have other mandatory documentary requirements. Article 18 suggests that not all cargo should be inspected, except for those which may be classified as suspect and “give rise to foul play.” A supplementary Convention was adopted specifying that security for payment dues was to be provided by a guarantee from reputable financial institutions.Directive C/DIR3/12/88 was also put in place to accelerate the setting up of a single guarantee system for transit goodsA/SP1/5/90 also addressed the “urgent necessity” to set up a mechanism for ISRT consisting of a chain of national bodies responsible for the guarantee, each designated by each Member State.Some countries such as Burkina Faso and Mali designated their Chambers of Commerce as national guarantees in response to the Directive, however, since other countries did not follow suit, a regional guarantee was still not achieved.The single document portion of the ISRT convention has been achieved; however, the region still lacks a regionally accepted guarantee.
12 COMESACOMESA Treaty (Annex I)RCTG Agreement (Ratified by 10 Member States)Inter-Surety Agreement (Agreement entered into among the National Sureties participating in the Scheme)PTA Road CustomsTransit Declaration Document (RCTD) and RCTGSeparates the customs declaration procedures from customs bond or guarantees.RCTG - Participating states set up national sureties which are regionally bound by signing Inter-surety agreements. The Council of Sureties manages the Scheme and an Insurance Pool underwrites the operations of the RCTG. The RCTG is acquitted in the National IT systems.Goods transit under Customs Trade Regime while vehicles transit under the COMESA Carrier License.Both the Regional Customs Transit Document (RCTD) and the Regional Customs Transit Guarantee (RCTG) are functional in COMESA.Most of its success can be attributed to the RCTG system being handed over to the private insurance industry, as in the case of Third Party Motor Vehicle Insurance in COMESA.Burundi, Kenya, Rwanda and Uganda are participating sureties, while Djibouti, Ethiopia and DRC have shown interest.SADCGoods in Transit GuaranteeSADC operates transit bonds which are national transit guarantees.
13 3.4 Third Party Motor Vehicle Insurance Systems Third party motor vehicle insurance has been one of the most successfully translated concepts from international legal instruments into regional law.ECOWAS-CEMAC-COMESA-SADC Insurance schemes work on the basis of cooperation between insurance companies and national bureaux responsible for managing the system.Challenges:Claims settlement process is often unclear, tedious and lengthy;In the event of an accident, transporters are left stranded in the transiting country and are unable to access help even when they report to the Bureau.Language and translation barriers,falsification of insurance cards, especially within ECOWAS.International best practices indicate that vehicles in transit must possess insurance coverage in every country of transit or purchase a regional third party motor vehicle insurance scheme. Although the 1948 Convention on the contract of International Carriage of Goods (CMR) was not ratified or acceded to by any SSA state, it sets stage for liability in the event of accident and damages and mandates vehicle insurance for inter-state transport of goods. 50% of SSA states are also party to the 1949 Geneva Convention on Road Traffic (replaced by the 1968 Vienna Convention on Road Signs and Signals), which defines requirements for vehicles conducting road transport. Third party motor vehicle insurance has been one of the most successfully translated concepts from international legal instruments into regional law. ECOWAS-CEMAC-COMESA-SADC Insurance schemes work on the basis of cooperation between insurance companies and national bureaux responsible for managing the system.Although an insurance card is mandatory and strictly inspected at all borders, the private sector in East and West Africa, attest to serious challenges in the claims settlement process which is in unclear, tedious and lengthy. In the event of an accident, transporters are left stranded in the transiting country and are unable to access help even when they report to the Bureau. Other challenges include language and translation barriers between Member States, putting truck drivers at the mercy of corrupt officials who take advantage of their ignorance. Within ECOWAS, insurance companies have lamented the existence of falsified Brown Cards and efforts by the private sector to defraud the system.
14 Recommendations: Third Party Motor Vehicle Insurance Member States should adopt an electronic system of issuance of insurance cards which will help to streamline the process and ensure the genuineness of cards issued.Member States should also audit motor vehicle insurance companies to ensure that pending claims are settled, in line with the provisions of third party vehicle insurance.
15 ObjectiveCompensation for victims of traffic accidents caused by vehicles in transitInternational Best Practices or Relevant Legal InstrumentVehicles in Transit must have insurance coverage in every country of transit or purchase a regional third party motor vehicle insurance scheme. The regional schemes should compensate victims of traffic accidentsRECsInstrumentKey ElementsEvaluation/ChallengesECOWAS1982 Convention A/P 2/5/1982 Regulating Inter-State Road Transport within ECOWAS ECOWAS Brown CardProtocol A/P 1/5/82 on the Establishment of an ECOWAS Brown CardBoth conventions make third party insurance mandatory and prohibit combined transport of passengers and goods in the same vehicle.The Private sector attests to the brown card being a requirement for vehicles at all border crossings in the region.However, the claims settlement process can be lengthy in member states, as is reported in Nigeria and Ghana.CEMACCEMAC Third Party Motor Insurance Scheme (Pink Card)Works on collaborative arrangement within Member States and insurance companies to secure insurance claims in the event of accident.The CEMAC Third Party Motor Vehicle Insurance is functionalCOMESA1993 COMESA Protocol for the Establishment of a Third Party Motor Vehicle Insurance SchemeAs a requirement under Article 85 of the COMESA Treaty, the Third Party Motor Vehicle Insurance (Yellow Card) Protocol, seeks to provide minimum guarantees for vehicles required by the laws in force in Member States when a vehicle is transiting.The Yellow Card Scheme is functional and provides coverage in all COMESA member States and pays medical costs for truck drivers in the event of an accident.SADCSACU Fuel Levy SchemeThe fuel levy system is based on tax levied for fuel purchasesThe system works well for domestic traffic because vehicles can be tracked.Fuel levy does not cover property damageNCTAProtocol No. 9 Third Party Motor Vehicle InsuranceThe provisions of Protocol No. 9 mandate an international third party liability insurance scheme covering road carriers against all third party risks in traffic within the territory of another NCTA Contracting state. Members of the NCTA, who are part of COMESA are covered by the Yellow Card SchemeUMAGreen Card Third Party Motor Insurance Scheme (also available to European and Mediterranean countries)The Green Card system is based on insurance premiumsIt is ideal because transporters are solely responsible for securing insurance and claims can be settled directly.
16 3.5 Customs Modernization towards Trade Liberalization All RECs have realized the benefits of intra-regional trade in principle, as is obvious through the majority being WTO members and ratifications of the GATT.Only 30% of SSA states have ratified the Revised Kyoto Convention, which is a crucial element SSA states must consider for advancement in trade and customs matters.Only 30% of SSA is party to the Kyoto Convention, which sets international best practices for customs matters. This reluctance to modernize and adopt expedited ways of working hampers on Africa’s trade volumes and competitiveness with respect to developed markets.
17 Recommendation : Customs, Trade and Transit Regimes Member States should strive to incorporate ICT in trade facilitation reformInterconnectivity of Customs systems will also enhance information exchange and cooperation between member states.ECOWAS should expedite the Regional Customs Interconnectivity projectMember States should strive to incorporate ICT in trade facilitation reform which will contribute immensely to streamlining procedures, reducing opportunities for corruption and delays.ECOWAS should expedite the Regional Customs Interconnectivity project which will contribute immensely to facilitating transit, especially in the implementation of the ISRT Guarantee Scheme.
18 3.6 Free Movement of People Updates on Free MovementIn June 2013, CEMAC Heads of States reached an agreement on the abolition of visa requirement for all CEMAC citizens effective January 1, 2014.Zambia and Tanzania recently ratified the 2005 SADC Protocol on Free Movement, which requires ratification of at least three-quarters of its member states for it to enter into force.EAC is making similar attempts through the Common Market Protocol, which is however, experiencing some delays against its targeted implementation date of 2015.Challenges: multiple memberships to RECs, slow harmonization of national law with regional agreements, peace and security issues, fear of loss of jobs for citizens and xenophobiaWay Forward towards CFTA: The complexity of managing multiple memberships and challenges of free movement creates an opportunity for the COMESA-EAC-SADC Tripartite to lead towards convergence of regulations on immigration for a large population of Africans.Notable progress has been made in the area of free movement of people, with most RECs haven adopted a regional protocol based on the principle of free movement without visas, which are fully enforced in ECOWAS and SADC.Non-implementation of free movement of persons stems from a multitude of factors including the aboveImplementation is particularly challenging for countries belonging to multiple RECs in instances where free movement has entered into force in one REC, and not in the other, as is the case for EAC or SADC states that are also members of COMESA. In certain RECs, such as the EAC, the interpretation of the regional agreement of free movement differs from country to country. For instance, Uganda only recently began issuing visitor passes to citizens from East Africa for a stay no longer than two months, contrary to the six-month provision in the Common Market Protocol. Tanzania also issues a three month stay to EAC citizens; however, it is in the process of revising its Immigration Act of 1995 to comply with the provisions of the Common Market Protocol.Way forward - In line with this, the tripartite agreement makes reference to facilitating the movement of business persons in Article 29. The Tripartite has promising prospects for creating mutual benefit across the three RECs and as a result increasing intra-African trade.
19 Recommendation : Free Movement of People Members of SADC who are yet to ratify the Protocol on Free Movement of People should be given a deadline to do so, such that the Protocol can enter into force.CEMAC states should ensure implementation of the new agreement on free movement of people which will become effective on January 1, 2014Member States within RECs should ensure uniform application of rules on visa requirements and immigration, and evolve towards regionally harmonized travel documentation.COMESA-EAC-SADC Tripartite should leverage its existing agreement and harmonize regulations on free movement of people, in line with its fundamental goals which will further lead to increased intra-African trade.
20 3.7 Transit for Landlocked Countries Some Corridor Organizations and Shippers’ Councils have made an impact, but can do more!Progress has been made through corridor organizations such as the Abidjan- Lagos Corridor Organization (ALCO), Central Corridor Transit Transport Facilitation Agency (TTFA), the Northern Corridor Transit Transport Facilitation Agency (NCTTA), and the Maputo Corridor Logistics Initiative, which is described by the private sector as one of the most successful of its kind in the region. FESARTA is also actively mediating between RECs and private sector.Challenges: Reluctance to grant access for landlocked countries, few ratifications to international Conventions, lack of freighting options for landlocked countries, poor infrastructure from roads, port and railWay Forward: landlocked and transit countries which have not already done so, should make efforts to streamline movement along corridors through accession to international transit conventions ; 1965 New York Convention on Transit Trade of landlocked countries, the Montego Bay Convention and make progress on the Almaty Programme of Action.For transit trade, landlocked and transit countries which have not already done so, should make efforts to streamline movement along corridors through accession to international transit conventions such as the 1965 New York Convention on Transit Trade of landlocked countries, the Montego Bay Convention and the Almaty Programme of Action. These conventions have generally seen less ratification from coastal states, reflecting a reluctance to grant access for landlocked countries. For example, Senegal and Nigeria are the only two coastal states which ratified the New York Convention to date. However, some progress has been made through corridor organizations such as the Central Corridor Transit Transport Facilitation Agency (TTFA), the Northern Corridor Transit Transport Facilitation Agency (NCTTA) and the Maputo Corridor Logistics Initiative, which is described by the private sector as one of the most successful of its kind in the region. However poor infrastructure from roads, ports and rail networks create a major obstacle for transit trade continent-wide. The cost of transit trade in the region discourages intra-regional trade, attributing most of its costs to unpredictability, checkpoints, informal fees and unnecessary delays.
21 Recommendation : Corridor Management Encourage implementation of the Almaty Programme of Action (APoA) through corridor performance monitoring and diversifying transportation networks, such as investments in rail infrastructure to create freighting options for landlocked countries.Share and Learn from successful and unsuccessful experiences in One Stop Border Posts (OSBPs) design and implementation continent wideReplicate SADC NTB reporting system which has had some successes in Southern AfricaMember States must make a firm commitment to support corridor organizations in their efforts at improving the competitiveness of the region.Involve the private sector in developing trade and transport facilitation programs since they are the end-users of these initiatives.3 - These organizations should be empowered as channels for public and private sector collaboration in trade facilitation.Overlapping of membership confuses recommendations to Member StatesTripartite Alliance formed, but not yet a REC. Should become oneAn intervention lead by one REC, is noted and not always ratified by other twoSlow implementation by Member States, of regional recommendationsPreparation of bankable projects
22 Success Story: Tripartite NTB Reporting System Available in EAC, COMESA and SADCThe private sector can register complaints along the corridors regarding harassment, illicit fees or arbitrary application of rulesAccording to FESARTA, Over 500 complaints have been recorded, 80% from SADC regionFESARTA plays a mediation role negotiate with relevant member states to solve the road transport complaintsNTBs affecting road transport116 Costly road user charges Malawi156 Varying weighbridge readouts and not accepting certificates Tanzania165 High port and other charges Tanzania165 Transit bonds are bureaucratic Tanzania172 Delays at border posts Malawi189 Pilferage at Beitbridge South Africa216 Costly road user charges SADC256 Delays at Kasumbalesa DRC262 Delays at Kasumbalesa DRC353 Non-harmonized load limits SADC361 Varying weighbridge readouts, with sealed containers EAC379 Costly road user charges DRC381 Non-acceptance of certified copies of documents Mozambique388 Too many road blocks EAC407 Varying weighbridge readouts on Dar Corridor Tanzaniadays total for visa limit Zambia421 Visa restrictions in Angola, Namibia, Zambia and South Africa SADC422 Requirement to use mudflaps Zambia423 Non-acceptance of certified copies of documents Mozambique423 Excessive agricultural permit checking at Machipanda Mozambique425 Excessive charges at Kasumbalesa DRC447 Customs hours at borders are not harmonized Rwanda448 Inadequate police escort management Rwanda449 Corruption along Northern and Central Corridors Rwanda453 No movement of trucks after 6:00 pm Tanzania454 Delays and costs of check points on Central Corridor Tanzania455 GCM is limited to 48 tons Kenya457 Excessive carbon tax and insurance costs Zimbabwe458 Delays at Martins Drift Botswana478 Articulated vehicle length 17m (general) and 16.5m (containers) Mozambique480 Municipal charges levied by Chililabombwe Municipal Council Zambia484 Old and inaccurate Victoria Falls weighbridge, and no re-weighing ZimbabweExcessive charges in countries to North of SA. SA doesn’t charge SADCFESARTA working with the RECs to improve the systemAlso works continually with RECs to try and solve the complaints.Non-Tariff Barriers (NTBs) refer to restrictions that result from prohibitions, conditions, or specific market requirements that make importation or exportation of products difficult and/or costly. NTBs also include unjustified and/or improper application of Non-Tariff Measures (NTMs) such as sanitary and phytosanitary (SPS) measures and other technical barriers to Trade (TBT).NTBs arise from different measures taken by governments and authorities in the form of government laws, regulations, policies, conditions, restrictions or specific requirements, and private sector business practices, or prohibitions that protect the domestic industries from foreign competition.
23 3.8 Inter-state Road Transport: Axle Load Controls For international conventions, the 1948 Convention on the Contract of International Carriage of Goods, 1949 Geneva Convention on Road Traffic and the 1968 Vienna Convention on Road Signs and Signals are relevant and have seen very few ratifications or accessions from SSA.Although most RECs have successfully adopted regional vehicle standards, except for EAC, which is in the process of adopting a harmonized axle load limit, implementation is often times lacking, inconsistent and arbitrary. Additional effort must be made by member states to comply with regional standards.Several attempts have been made within ECOWAS for intra-regional harmonization of axle loads as specified in the ECOWAS Land Transport Programme. The general experience in ECOWAS revealed that varying axle load limits created unpredictability along journeys.Way Forward:Since Member states are responsible for ensuring compliance at the national level, the private sector must be given a realistic deadline for compliance, given that the short to medium term costs of compliance will be significant for businesses.Facilitating inter-state road transport also encompasses managing vehicles conducting transit. RECs must balance facilitating traffic with maintaining controls to preserve road conditions. For international conventions, the 1948 Convention on the Contract of International Carriage of Goods, 1949 Geneva Convention on Road Traffic and the 1968 Vienna Convention on Road Signs and Signals are relevant and have seen very few ratifications or accessions from SSA.Although most RECs have successfully adopted regional vehicle standards, except for EAC, which is in the process of adopting a harmonized axle load limit, implementation is often times lacking, inconsistent and arbitrary. Additional effort must be made by member states to comply with regional standards.Several attempts have been made within ECOWAS for intra-regional harmonization of axle loads as specified in the ECOWAS Land Transport Programme. The general experience in ECOWAS revealed that varying axle load limits created unpredictability along journeys. Countries which made an attempt at implementation of the 11.5tonnes per axle in West Africa were eventually frustrated because their truckers became uncompetitive relative those from non-compliant member state, as in the case of Nigerien and Ghanaian trucks. The stakes for non-compliance are high; overloading puts pressure on already weak road infrastructure in the region. Since Member states are responsible for ensuring compliance at the national level, the private sector must be given a realistic deadline for compliance, given that the short to medium term costs of compliance will be significant for businesses.
25 Recommendation : Inter-state Road Transport – Regulations and Documentation EAC should speed up discussions at the legislative assembly on the Axle Load Harmonization BillECOWAS: The private sector within ECOWAS should be given a reasonable deadline to comply with axle load limits in the region and begin implementation in unison.The BillThe Bill, titled EAC Vehicle Load Control Bill, 2012 was discussed by EAC Partner State technocrats and Ministers responsible for Roads, Transport, Trade, EAC Affairs and Judicial Affairs.It aims to give legal force to the agreement reached last year among EAC Partner StatesThe Bill is now due for consideration by the EAC Council of Ministers before it is ultimately forwarded to the East African Legislative Assembly for debate and enactment into a Community law which shall be applicable in all the Partner StatesOther RECs to RatifyAs mentioned earlier, if one REC carries out a project, the other two are obliged to ratify it.There could be disagreements, eg weighbridge allowance, and these have to be worked out before recommendations are made to member states.
26 4. Key Reasons for non-Implementation of Legal Instruments Lack of designated institutions at the national level to follow up with ratification processRegional Conventions which cite international conventions which member countries have not ratified or acceded Precedence of Bilateral Agreements over Regional Agreements Failure to Properly Document Legal Instruments within InstitutionsLack of Knowledge and Poor Information DisseminationMultiple memberships to RECs/ overlapping membershipLack of Political Will Poor Infrastructure to support PoliciesPoor inter-agency coordinationObsolete or Out-dated legal instrumentsLack of designated institutions at the national level to follow up with ratification processRegional Conventions which cite international conventions which member countries have not ratified or acceded Precedence of Bilateral Agreements over Regional Agreements – Although the argument is clear that when a regional agreement exists, it supersedes other bilateral agreements made between countries within the REC on the same subject. However, in some cases, bilateral agreements go beyond the scope of corresponding regional agreements, as they may create additional conditions or eligibility criteria for parties to benefit from said provisions. In terms of applicability, the fact of familiarity and nearness make these bilateral agreements practicable and implementable on the ground. When bilateral provisions exempt third party countries from specified benefits, it usually creates confusion of laws and information within private sector conducting business within the RECs. Third countries are then punished, although they have signed similar agreements at the REC level.Often times, bilateral agreements simply emphasize the willingness of partner countries to cooperate with each other, also reflecting a sense of proximity, mutual understanding and orientation. In cases where agreements made contradict the provisions of regional agreements or go beyond the scope of these agreements, they may create confusion in applicability of regional vs. bilateral. In this case, RECs must take stock of all bilateral agreements and ensure there are no contradictions with regional laws and if there are, draw those to the attention of parties of such bilateral agreements, as they go against the spirit of regional integration.Failure to Properly Document Legal Instruments within InstitutionsThere are instruments which are yet to be published in the United Nations records, or international agreements which have no “officiating agency” as the implementer playing a supervisory role to ensure implementation. In these instances, it becomes very difficult to obtain information or monitor progress on such instruments, which have been forgotten, not properly filed or have no “home”. Implementation becomes challenging when information is sparse and users are ill informed.Lack of Knowledge and Poor Information DisseminationFrom interviews, transport business owners state that policy updates are usually made available via notifications from the government or through the media; however, it is usually insufficient or does not reach the majority of users. In some cases, poor information results in poor planning and inability to predict transport costs and delays along corridors. An informed private sector will have the power to drive change or advocate governments to implement rules evenly.Multiple memberships to RECs/ overlapping membership – Belonging to multiple RECs has been tagged in several studies as a major reason for non-implementation of legal instruments. However, when studied carefully, it does not influence implementation to the degree which is generally believed. ECOWAS and UEMOA for example, have found means to harmonize several trade and transport regulations, regardless of overlapping membership for the eight UEMOA Member States. In some cases, countries actually reap the benefit of multiple memberships, as it enables them to stretch beyond their reach, trade with a larger number of countries, and enjoy preferential treatment through various streams. The key issue arises when countries sign agreements in multiple RECs which contradict each other. Implementation is difficult in this case.Lack of Political Will – In the Gap Analysis conducted on the ECOWAS Free Trade Area, the study found that some countries have not implemented the ECOWAS Free Trade Area agreement due to lack of political will. These member states have also failed to take ownership of the policies by institutionalizing them and incorporating them into national strategies. This is common in the case of corridor management and facilitation committees, which are often donor, funded, and have not developed sustainable means of financing or implementing activities.Poor Infrastructure to support PoliciesTrade related infrastructure remains weak along several corridors, including maintenance, upgrading and construction of new facilities for all modes of transport. For some instruments adopted in Africa for trade and transport facilitation, the infrastructural backing is missing which hinders full implementation. In issues related to harmonization of customs documentation, the application of ICT remains weak. Incorporating ICTs in trade facilitation reform can contribute immensely to streamlining procedures, reducing opportunities for corruption and delays. Since a large percentage of regional trade is conducted primarily via road transport, special attention must be given to mobilizing resources for upgrading road networks and maintaining them. In some cases, assessing the implementation of legal instruments is challenging, when the instruments are adopted from European models, which already assume the availability of certain infrastructure. This is especially common with conventions related to maritime and multimodal transport which have been adapted in different RECs, e.g. CEMAC Merchant Shipping Code and some Central African.Poor inter-agency coordinationWhen agencies fail to coordinate, it becomes difficult to yield much traction on policy implementation. For proper implementation of policies, relevant agencies must coordinate activities to ensure that all facets of policy implementation are taken into account from the moment of its entry into force. Information must be provided to the general public, infrastructure mobilized and all measures taken to ensure that the legal instrument comes alive.Obsolete or Out-dated legal instrumentsNon-implementation also arises when RECs continue to make reference to old conventions, which have become outdated and no longer fit into global happenings and technological advancement. For example, this is the case of the ECOWAS Inter-state Road Transit logbook (ISRT) which is no longer in use in several countries for the purposes of transit due to the duplication of procedures involved. ECOWAS is in the process of reviewing the ISRT and adapting ICT to its implementation, via the Customs Interconnectivity Project, which will accommodate information sharing between customs bureaus in the region.USAID West Africa Trade Hub conducted a gap analysis of trade agreements for the ECOWAS Free Trade Area.
27 COMMON POLICY IMPLEMENTATION PROCESS BOTTLENECKS FinancialExample – national export or import taxes on goods covered under ETLSInstitutionalCrossover between ministries of trade and finance or trade, finance and agStructuralNational Governments need to ensure that implementation texts have force of law
28 5. General Recommendations IssueActionBy Whom1Coordinate REC programs with member state activitiesRECs and implementers in member states must coordinate activities to ensure that all facets of agreements signed are taken into account from the moment of their entry into force.RECs, Member States2Ratify outstanding Legal InstrumentsAssist countries who are yet to ratify key international conventions by publicizing the benefits of membership to legal instruments through several available studies and assessments.UNECA, Development Partners, Member States3Monitor and Evaluate Progress regularlyMonitor and evaluate progress made on each instrument with a record-keeping matrix of all signed legal instrumentsRECs4Engage the private sector by making information availableMember States should make information available on regional regulations for trade and transport, through public awareness campaigns and signs along corridors and borders.5Keep track of existing bilateral agreements and ensure fairnessEnsure their coexistence in the least disruptive manner with regional or international conventions. RECs should keep a well-documented catalog of all trade and transport bilateral agreements and evaluate their compatibility or otherwise with other regional or international legal instruments.1. For example, UNECA can complement the efforts of each REC by developing an inventory of conventions, based on the study findings, that need to be ratified and attaching a manual of how ratification must be carried out. The booklet should also contain instructions for accession to each of the outstanding instruments, and set deadlines for accession to speed up the process2. The status of implementation of legal instruments should be verifiable in the reporting system created by technical departments which should include details of how they are applied. A specific record-keeping matrix is needed for international conventions to keep track of the issues, date of signature, ratification or accession, and likewise for regional protocols3. An informed private sector will become more compliant and be in a stronger position to advocate to their governments for changes.4. Bilateral Agreements: Regional integration implies the gradual scraping (or phasing out) of existing bilateral agreements; however the practice in all RECs is that in several cases bilateral agreements are more enforced by member states than regional protocols and in fact they contribute positively in some instances. RECs must ensure that regional protocols are drafted with the appropriate legal status which do not require additional bilateral agreements to enter into force, i.e. automatic applicability.5. Since a large percentage of regional trade is conducted primarily via road transport, special attention must be given to mobilizing resources for upgrading road networks and maintaining them, and considering rail networks, especially for transit trade.
29 IDEAS FOR OPTIMIZING MEMBER STATE COMPLIANCE REC POLICIES ARE EFFECTIVELY IMPLEMENTED IN MEMBER STATES AND TRADE IS FACILITATEDImprove Monitoring and Evaluation to ensure informed policy makingImprove compliance enforcement to drive harmonization and effectivelyReinforce Commission compliance advocacy and support in member states to build buy in
30 6. ConclusionsTo ensure full implementation, national governments must evaluate the suitability, adaptability and process of becoming party to international legal instruments and identify the duration and changes necessary to be in full compliance.RECs must leverage existing opportunities in relatively functional policies, as in the case of the COMESA-EAC-SADC Tripartite. Harmonizing policies will foster convergence and ultimately create larger trading opportunities continent-wide.Proper Documentation of Legal Instruments is Key – Allows for dissemination, monitoring and evaluation and better coordination of effortsShared Responsibility in Implementation – RECs, Member States, Private Sector, Civil SocietySimilar opportunities exist with regards to road transport regulation, standards and documentation. For example, ECOWAS, COMESA and SADC currently operate similar third party vehicle insurance schemes, which can be adopted and harmonized into a continent-wide scheme in view of the CFTA.Finally, governments must track progress using proper monitoring and evaluation tools. Recording progress from region to region will allow for learning, leveraging on past successes, and finally convergence towards a continental free trade area.
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