AfCFTA and the acquis principle - Reinterpreting the legal foundation for Africa's developmental integration
This article is a further reflection on the foundation of the acquis principle and a think piece from a conference paper presented during the seminar “First Years of Functioning of the African Continental Free Trade Area: Challenges and Prospects”
Examination of the AfCFTA against its guiding principles, including the acquis principle
Heralded as a "game-changer" for the continent's development trajectory, the African Continental Free Trade Area (AfCFTA) has garnered widespread support among policymakers, economists and legal scholars alike. Yet beneath this enthusiasm lies a critical tension that may undermine the agreement's developmental potential: a fundamental misinterpretation of the "preservation of the acquis" principle that guides its implementation.
The AfCFTA was conceived as a transformative instrument to advance Africa's economic emancipation and foster human-centred development across the continent. Positioned as a flagship project within the African Union (AU)'s Agenda 2063, it was designed to create a people-centred developmental trade regime that would boost intra-African trade, enhance inclusivity, deepen continental integration, and promote economic development through a unique legal framework.
Five years after its entry into force, however, early assessments suggest that the AfCFTA may be falling short of its developmental aspirations. Instead of serving as a vehicle for comprehensive human-centred development, the agreement appears to function primarily as a tool for market liberalisation - a shift that significantly deviates from its original vision as outlined in Agenda 2063 and earlier AU instruments.
This conceptual deviation stems, in large part, from the narrow interpretation of one of the agreement's guiding principles: the "preservation of the acquis." While originally conceived by the AU Assembly as the "reservation of the acquis" - explicitly encompassing "the Acquis of the Union" including the AU Constitutive Act and the Abuja Treaty - this principle has been progressively narrowed during negotiations to refer exclusively to Regional Economic Communities' Free Trade Agreements (REC FTAs). This restrictive interpretation reflects a fundamental reorientation away from an African-centred, rights-based developmental approach toward a market-focused framework aligned with mainstream liberal economic narratives.
The implications of this shift are profound. By disconnecting the AfCFTA from the broader AU legal ecosystem, particularly its human rights and developmental governance frameworks, the current interpretation threatens to undermine the agreement's coherence and effectiveness as a tool for advancing Africa's collective self-reliance and economic emancipation.
This article examines the evolution of the "preservation of the acquis" principle within the AfCFTA framework, tracing its transformation from a comprehensive principle that embedded the agreement within the broader AU legal ecosystem to its current restrictive conception. Through a systemic coherence analytical framework, I explore how reinterpreting the acquis principle to encompass the entire AU legal framework - including human rights instruments and development governance frameworks - could realign the AfCFTA with its original developmental purpose and transform it from another layer in Africa's fragmented trade landscape into a genuine vehicle for human-centred continental integration.
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Situating the AfCFTA in Africa's integration journey
Understanding the AfCFTA requires situating it within the historical context of Africa's regional integration efforts. The agreement represents the latest attempt to realize the vision of continental economic integration first articulated in the Lagos Plan of Action and later codified in the Treaty Establishing the African Economic Community (the Abuja Treaty). After numerous deviations from the economic unification roadmap envisaged under the Abuja Treaty made the prospects of the African Economic Community (AEC) increasingly remote, the AfCFTA emerged as a renewed effort to advance this original vision.
The AfCFTA was established with explicit recognition of "the need to establish clear, transparent, predictable and mutually-advantageous rules to [trade] among State Parties, by resolving the challenges of multiple and overlapping trade regimes to achieve policy coherence." It also acknowledged linkages with the broader AU legal framework through the "reaffirm[ation of] existing rights and obligations with respect to each other under other agreements to which [AU member states] are parties."
This positioning of the AfCFTA within the broader AU legal ecosystem is crucial. The AU legal order comprises a vast array of instruments—no fewer than 74 treaties and over 1,500 legal instruments adopted by the Assembly—through which Member States have consented to multiple "sets of implicit or explicit principles, norms, rules, and decision-making procedures" governing various aspects of continental affairs. Understanding the relationship between the AU's economic regime (of which the AfCFTA is part) and other AU legal regimes provides a critical platform for assessing the agreement's alignment with the AU's trade-led developmental agenda.
Developmental regionalism and the AfCFTA
The AfCFTA has emerged at a critical juncture in the evolution of African regionalism. Neither state-led "old regionalism" (analysed through Eurocentric, functionalist paradigms) nor non-state-centric "new regionalism" (oriented toward liberal, global value chain integration) has delivered the expected developmental dividends for African countries. This context has spurred a reinvigorated appetite for regional integration, notably through adopting Boosting Intra-African Trade (BIAT) and fast-tracking the CFTA decision.
Scholarly discourse on African regionalism has increasingly emphasised the concept of "developmental regionalism"—an approach that combines trade liberalisation with strategic policy interventions in industrial development, infrastructure, and other areas conducive to inclusive growth. This paradigm recognises that successful regional integration in Africa requires not just removing trade barriers but also addressing supply-side constraints, enhancing productive capacities, and ensuring equitable distribution of integration benefits.
Two primary schools of thought have emerged within this developmental regionalism framework. The first emphasises regional value chain development, redefined terms of trade, infrastructure enhancement, and democratic governance. The second builds on these elements while emphasising establishing robust institutional frameworks and a cohesive normative approach to regional integration, particularly highlighting the interconnectedness of legal regimes related to trade, security, and other domains.
A more expansive approach has recently emerged that situates developmental regionalism within Africa's broader integration history. This perspective views developmental regionalism as a significant phase in African regional integration that transcends conventional market-led approaches. It emphasises an integrative perspective that links various African or REC frameworks beyond mere trade liberalisation, with active involvement of regional courts and a focus on rights-based regionalism wherein legal frameworks protect national interests and social and economic rights.
Within this paradigm, the commonly discussed challenges related to multiple and overlapping FTA memberships are reframed as strategic developmental flexibility rather than inefficiency, reflecting a fluid and dynamic understanding of development responsive to diverse national and regional contexts.
Systemic coherence as an analytical framework
To examine how the AfCFTA fits into the broader legal architecture of the AU, this article employs a systemic coherence analytical framework. This framework builds upon and operationalises the concept of "governance space," offering a practical method for analysing normative interactions within the AU legal ecosystem.
Systemic coherence goes beyond mere policy coordination to address essential questions about how norms align within the AU's legal framework. It acknowledges that the AU's legal order comprises distinct yet interconnected regimes - including trade, human rights, security, and governance - creating a complex network of obligations that Member States must navigate.
The concept draws on the legal coherence framework, which examines formal interpenetration between AU legal instruments. However, it extends beyond technical legal compatibility to incorporate substantive alignment with core AU values and objectives. This broader understanding of coherence considers the teleological dimension of AU instruments, recognising that they share common goals related to promoting African agency, self-determination, and human-centred development.
From this perspective, implementing the AfCFTA involves more than merely applying a separate trade agreement. It requires examining how trade liberalisation interacts with and supports broader continental objectives outlined in key documents such as Agenda 2063, the AU Constitutive Act, and the Abuja Treaty. Systemic coherence offers a methodological approach for applying this foundation to specific interpretative challenges within the AfCFTA.
From reservation to preservation
The failure to maintain systemic coherence in interpreting key AfCFTA principles has created significant implementation challenges. Discrepancies between integrative policy narratives and fragmented rulemaking principles have been noted since the start of negotiations. The guiding principles are essential for smooth implementation, as reflected in the AfCFTA Agreement's provisions regarding REC FTAs as building blocks, preservation of the acquis, and best practices. However, undefined concepts like "preservation of the acquis" have complicated negotiations and treaty implementation.
The concept of "preservation of the acquis" presents a particularly problematic case of interpretative inconsistency. In its current interpretation, this principle is widely assumed to reference only REC FTAs, limiting its scope to existing preferential trade arrangements at the regional level. This narrow interpretation fails to account for the broader AU legal framework that should inform the AfCFTA's implementation. When viewed through the lens of systemic coherence, the acquis should logically encompass the entire body of relevant AU law, including human rights instruments, development frameworks, and governance standards that form the foundation of the African integration project.
This theoretical problem has practical implications. By compartmentalizing the trade regime and disconnecting it from the broader AU legal ecosystem, the narrow interpretation of acquis creates silos between different aspects of African integration. It prioritises trade liberalisation as an end rather than a means to achieve the comprehensive development objectives established in instruments like the AU Constitutive Act, Agenda 2063, the African Charter, and ultimately, the higher objectives of the AfCFTA Agreement itself.
The unresolved guiding principles, especially the restrictive conception of preserving the acquis, have complicated rather than simplified the AfCFTA's implementation. What was intended as a cohesive tool for African countries has become another layer in an already fragmented landscape. This contradiction between the AfCFTA's stated objective of resolving the challenges posed by overlapping trade regimes to achieve policy coherence and its implementation approach that reinforces fragmentation stems directly from the theoretical inconsistency in how key concepts like acquis are interpreted.
Historical evolution through the negotiation process
To understand how the interpretation of the acquis principle evolved, we must examine the historical development of this concept through the AfCFTA negotiation process.
The Continental Taskforce (CTF) was established as early as 2013 to support and prepare the negotiations. During the 27th AU Summit in 2016, the AU Assembly mandated the African Union Commission (AUC) to prepare a zero-draft text to facilitate the negotiation, and the AUC called upon the CTF for support.
The inaugural meeting of the negotiating forum took place in February 2016, and its working arrangements were considered until their adoption during the second meeting in May 2016. At this meeting, the negotiating forum recommended that the guiding principles for the negotiations be incorporated into the agreement to serve as guiding principles for implementation. The same meeting recommended the adoption of the principle of "reservation of the acquis" as follows:
"The CFTA shall build on and improve upon the acquis if existing REC FTAs and shall not reverse or be inconsistent with the Acquis if the Union including but not limited to the Constitutive Act, the Abuja Treaty and other relevant legal instruments of the Union."
This definition, along with all other guiding principles, was confirmed as adopted by the 1st African Ministers of Trade (AMOT) meeting held the same month, with the principle renamed as "preservation of the acquis." AMOT further clarified that the principles should be read coherently in conjunction with one another, and to ensure respect for the Union's acquis, requested the AUC to provide negotiators with all "AU treaties, protocols, and legal instruments that are relevant to the scope and objectives of the CFTA."
In January 2017, the CTF considered the draft full text for final review before submission to Member States. During this meeting, they discussed the linkage between the instrument establishing the CFTA and the Abuja Treaty. The AU Legal Council (AULC) explained the reasons for and importance of anchoring the instrument to the Abuja Treaty, and the meeting suggested adherence to the AULC's recommendation.
In March 2017, the AUC presented a zero-draft version of a text to serve as a basis for negotiations. This draft, titled "Protocol to the Treaty Establishing the African Economic Community on the Continental Free Trade Area," proposed that the "African Union CFTA" be guided by the principles contained in Article 4 of the Constitutive Act and Article 3 of the Abuja Treaty, thereby explicitly establishing a link between CFTA implementation and the guiding principles of the AU and the Abuja Treaty.
However, during discussions among member states, a recommendation was made to sever this linkage, influenced by a previous ministerial instruction to treat the CFTA as a standalone agreement separate from the Abuja Treaty. The AULC subsequently advised that if the protocol were to be treated as a standalone agreement, it should still reflect the organic link with the Abuja Treaty. Moreover, the AULC recommended that the African Court of Justice and Human Rights be given authority to resolve disputes arising between parties under the CFTA, underscoring the Court's designated jurisdiction over matters related to the interpretation, application, or validity of Union treaties and subsidiary legal instruments.
At the same time, the evolution of the guiding principles reflected a shift away from the comprehensive understanding of the acquis. During the 5th negotiating forum meeting, the draft text initially included references to the AU Constitutive Act and the Abuja Treaty's principles. However, by the 7th meeting, these references were replaced by the current, more limited principles.
Reinterpreting the acquis for developmental integration
The current working definition of the acquis, as articulated by scholars like Kufuor, suggests that "the acquis is in the assertion that the members reaffirm their existing rights and obligations under other trade agreements of which they are members." This definition, however, raises several critical issues:
If the acquis reaffirms existing rights and obligations under other trade agreements, it may be legitimate to consider that the scope covers the REC FTAs, which is coherent with the definition of "preservation of the acquis" as a negotiating principle. However, this notion largely overlaps with another key guiding principle, namely the "REC FTAs as building blocks of the AfCFTA."
Despite widespread assertion that the RECs are building blocks of the AfCFTA (rather than "REC FTAs as building blocks"), the AfCFTA is conceived as a step toward catching up and realising the AEC. Nevertheless, the distinction between RECS as full-fledged international organisations versus REC FTAS as building blocks requires clarification, as RECS are much more than their trade programs, even though their vocation is economic by construction.
When read in conjunction with other principles, the acquis may suggest that, beyond considering liberalisation efforts made under REC trade schemes, other trade measures should be factored into AfCFTA implementation, including commitments made under non-trade REC legal instruments that contain provisions relevant to REC trade regimes. However, the severance from the rest of the AU legal body suggests a blind spot regarding relevant legal trade-related or trade-impacting obligations made by State Parties in other AU instruments.
This narrow conception of the acquis is widely shared in scholarship, although many acknowledge that the lack of clear definitions makes implementing some provisions speculative. Furthermore, some relational implications may induce duplications of trade regimes, potentially risking the opposite of continental integration. In current scholarship, the acquis issue is almost exclusively considered in the context of the relationship with RECs (or more specifically with REC FTAs), either in relation to Article 18(2) on the exchange of preferences or Article 19 on conflicts with other regional agreements. Few have established relationships with the broader AU legal framework, despite the original intent of the acquis being not only to build on REC FTAs but also to refrain from negatively affecting the Union's acquis.
In this context, negotiations respectful of the Union's acquis should have taken into account commitments made by State Parties under other relevant Union instruments. The AU Legal Council identified several such instruments, including the Abuja Treaty, the Statute of the African Court of Justice and Human Rights, the Revised Maritime Transport Charter, and the Phyto-Sanitary Convention of Africa. The UN Economic Commission for Africa also identified additional relevant instruments, including the Convention of the African Energy Commission, the Protocol on Free Movement of Persons, the Yamoussokro decision on the single African Air Transport Market, the Statute of the Pan-African Intellectual Property Office, and the Revised African Convention on the Conservation of Nature and Natural Resources.
The institutional perspective seems to confirm a restrictive conception by defining the acquis in relation to "RECs free trade areas will be preserved as part of the AfCFTA negotiations." In other words, when read with Article 19, the AfCFTA is not to exceed the level of liberalisation of the REC FTAs. This point was also raised by senior advisors to the AUC in relation to the adopted dispute settlement mechanism and its linkages with the rest of the AU legal framework.
A broader interpretation of the acquis would enhance coherence and positive developmental implications. A pragmatic examination of the overall AfCFTA provisions in light of a streamlined acquis—not restricted to the level of liberalization in the RECs—reveals contradictions with a narrow interpretation. Clear indications of an expanded acquis can be found in the negotiating modalities for services liberalisation, which call for building on REC liberalisation schemes as well as other existing regulatory frameworks, such as AU Assembly decisions regarding investment, intellectual property, and competition policy.
If the prime objective is to "create a single market for goods, services, facilitated by movement of persons in order to deepen the economic integration of the African continent and in accordance with the Pan African Vision of 'An integrated, prosperous and peaceful Africa' enshrined in Agenda 2063," such a single market cannot ignore the organic relationship between the AfCFTA and other AU instruments, such as the Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment, without which a single market is impossible.
Considering the general meaning of acquis in good faith, the comparison between the acquis under the AfCFTA and other legal contexts, such as the EU or the WTO, suggests a tension between the restrictive conception of an acquis of the RECs and a more coherent and comprehensive institutional acquis. If the acquis were conceived more extensively, one could not cherry-pick legal obligations to consider, hence the proposal for a conception of systemic coherence.
A framework for systemic coherence
A key, strong overarching component of the AU legal system is its human rights dimension. Within this context, the right to development (RTD) - recognised as a human right under the AU legal system - serves as a central concept in the AU legal architecture and informs the development of specialised, thematic instruments, including the AfCFTA. A legally coherent AfCFTA design must acknowledge and respect this human right as a standard to uphold in every aspect of negotiation and implementation.
Since the early days of AfCFTA negotiations, analysts have warned against the potential fragmenting effects of ill-defined guiding negotiating principles. The principle of reciprocity, for instance, has generated implementation complications. This principle - embedded in a conditional most-favoured-nation (MFN) clause - is a definitional aspect of the AfCFTA architecture. Building on the International Law Commission's work on MFN clauses in trade agreements, if the preservation of the acquis means using REC liberalisation schemes as building blocks for new, additional concessions when negotiating with State Parties and African third parties, the negotiations should not start from a blank slate, as ongoing negotiations seem to do.
In a more extensive conception, REC trade scheme members—virtually all State Parties - would have under the AfCFTA nothing more to offer than their RECs' tariff liberalisation exclusions, as well as all they have offered to third parties, such as under Economic Partnership Agreements with the European Union. However, this explanation of the preservation of the acquis cannot explain the current state of play.
An alternative explanation that better reflects ongoing tariff negotiation dynamics could be that the acquis seeks to shelter the RECs' trade schemes from further liberalisation, rather than build on them. This would explain the shift from the AU Assembly's original decision of "reserving" the acquis to the negotiators' choice of "preserving" it, an interpretation that seems to align better with the institutional view.
This issue of defining the acquis raises questions about the relationship with the rest of the AU legal system. Preserving it as shelter from further regional liberalisation represents not only a deviation from the AU Assembly's binding decision but also a fundamental erosion of the AfCFTA's ambition. The problem can be considered along two dimensions: internal ecosystemic coherence and external ecosystemic coherence.
The literature discusses how vague definitions of principles create challenges in implementing the AfCFTA, potentially leading to fragmentation in the trading landscape that the agreement aims to integrate. Although establishing these principles might have been necessary to prevent free riders and may have been foresight regarding some State Parties' current non-compliance with their obligations, the relational consequences significantly affect the fundamental purpose of the AfCFTA.
Regarding external coherence, the current construction of the AfCFTA negates the AU Assembly's original will, as exemplified by the evolution of the acquis definition. It also demonstrates the Union's powerlessness to adopt a cohesive conception of its legal order and enforce its own decisions, thereby frustrating the very essence of the higher ambitions and interests of the African peoples as laid down in Agenda 2063 and other AU legal obligations.
Realigning the AfCFTA with its developmental purpose
The current interpretation of the AfCFTA's principle of "preservation of the acquis," viewed primarily through the narrow lens of REC FTAs, undermines both legal coherence and the broader developmental goals of the African Union. Through historical legal analysis and examination of negotiating texts, we have traced the evolution of this principle from the AU Assembly's original notion of "reservation of the acquis" - which explicitly encompassed the broader "acquis of the Union" - to its contemporary restrictive application focused solely on existing preferential trade arrangements.
This conceptual shift reflects a fundamental reorientation of the AfCFTA from its intended role as an instrument for development-centred regional integration toward a conventional market liberalisation tool aligned with mainstream liberal economic narratives. By compartmentalising the trade regime and disconnecting it from the broader AU legal ecosystem, this narrow interpretation creates artificial barriers between different aspects of African integration and prioritises trade liberalisation as an end rather than a means to achieve comprehensive development objectives.
Reinterpreting the acquis principle to encompass the entire AU legal framework, including human rights instruments and development frameworks such as the RTD, would have significant practical implications:
It would provide policymakers with clearer guidelines for resolving conflicts between trade liberalisation objectives and other important developmental goals.
It would reorient technical negotiations toward supporting regional and continental value chains rather than protecting narrow national interests, which is likely to entrench the project in an open regionalism perspective.
It would require systematic assessment of all AfCFTA provisions and implementation mechanisms against broader AU development commitments, including human rights obligations.
As the AfCFTA undergoes its legally prescribed five-year review, there exists a timely opportunity to realign the agreement with its original developmental purpose. By embracing a systemic coherence approach that reconnects the AfCFTA to its AU legal foundations, African leaders can transform what threatens to become another layer in Africa's fragmented trade landscape into a genuine vehicle for human-centered continental integration that advances Africa's collective self-reliance and economic emancipation—goals that have guided African integration efforts since independence.
The RTD offers a particularly compelling foundation for this approach in the African context. Unlike general human rights frameworks, the RTD enjoys a unique status within African legal systems. Article 22 of the African Charter on Human and Peoples' Rights explicitly recognises the RTD, and African jurisprudence refines its application through substantive and procedural aspects, holding the State as a duty-bearer to ensure prior and explicit consent from affected communities and to refrain from causing harm.
Applied to the AfCFTA, this framework enables assessment of whether governance structures facilitate meaningful participation by affected communities, evaluates whether provisions promote equitable distribution of benefits from integration, examines whether implementation mechanisms create accountability to rights holders, and analyses how dispute resolution systems protect vulnerable populations.
The RTD governance framework serves as a practical tool for rethinking African integration. It establishes a normative standard for assessing the AfCFTA and offers a methodological approach for creating implementation mechanisms that promote human well-being and dignity. By focusing on RTD-based regional integration, this analysis proposes an alternative analytical framework for an Africanized, endogenous approach to development that could restore the AfCFTA to its original vision as a transformative instrument for advancing Africa's economic emancipation and fostering human-centred development across the continent.
