It is envisaged that the Intellectual Property Law governing the African Continental Free Trade Area (AfCFTA) has the potential to become the growth accelerator for Micro, Small and Medium Enterprises (MSMEs); and with that, the creation of more jobs in member-countries.
The World Economic Forum states that MSMEs account for more than 80 percent of Africa’s employment (in a market of about 1.2 billion people). MSMEs contribute up to 50 percent to its Gross Domestic Product (GDP), according to WEF.  Many African countries, especially those in sub-Saharan Africa, are beset with increasing unemployment among the youth. Therefore, the IP Protocol is expected to facilitate growth of the MSMEs in a positive manner.
The Agreement establishing the African Continental Free Trade Area (AfCFTA) brings together 55 African Union member-states and will form the world’s largest free trade area by number of participating countries. It will also establish a single continental market wherein goods, services and people can move freely. This will effectively expand intra-African trade across the continent, enhancing competitiveness and supporting the economic transformation of Africa.
AfCFTA covers trade in goods and services, investment, intellectual property rights and competition policy.  According to trade experts, Phase II negotiations of the agreement hold many opportunities, particularly for Intellectual Property (IP). IP rights are territorial in nature, which means that national laws regulate the conditions for their acquisition and enforcement. IP laws may be used as tools to stimulate innovation and facilitate development through disclosure and transfer of knowledge and know-how. Article 4 of the AfCFTA Agreement prescribes the cooperation of state parties on investment, intellectual property rights and competition policy.
Therefore, the negotiations in Phase II should be anchored on the attainment of a single continental market. However, Intellectual Property Rights – especially those related to trade, are power relations; and these power relations are stark in the field of health. For instance, Ghana’s pharmaceutical sector is a growing sector that could give Ghana a competitive edge if negotiations in Phase II clearly set out the rules. The functional IP could reduce Africa’s importation of basic drugs from Europe and promote intra-Africa trade in the spirit of AfCFTA.
IP Protocol and MSMEs
Experts says for IPs to stimulate growth of MSMEs, the IP Protocol should focus on eliminating differential treatment of the AfCFTA countries compared to countries outside Africa. This difference emanates from the participation of different countries in different multilateral and bilateral IP rights treaties. For instance, some countries are not members of the World Trade Organisation (WTO) and therefore do not benefit from some international IP principles, such as national treatment and most-favoured nation treatment.
In international trade, the most-favoured-nation (MFN) clause requires a country to provide any concessions, privileges, or immunities granted to one nation in a trade agreement to all other World Trade Organisation member-countries. Though its name implies favouritism toward another nation, it signifies the equal treatment of all countries. On the other hand, the national treatment clause forbids discrimination between a member’s own nationals and the nationals of the other members.
Second, the IP protocol should leverage on already existing regional IP regimes – such as ARIPO and OAPI – to streamline the continent’s IP policies. Africa has two regional patent systems: OAPI (Organisation Africaine de la Propriété Intellectuelle or African Intellectual Property Organisation) and ARIPO (African Regional Intellectual Property Organisation).
Though the larger African economies of South Africa, Nigeria and Egypt do not form part of the regional systems, the OAPI and ARIPO systems provide a relatively easy and effective way of extending IP protection to a total of 35 African countries with a combined nominal GDP of US$420billion. These institutions should be supported for effective implementation of the policies. Lastly, the IP protocol should focus on opening the continent’s market. As far as IP is concerned, this may be attained by reviewing laws and policies of member-states regarding exhaustion of rights.
Exhaustion of rights (also known as the first sale doctrine) stipulates that where the IP right owner places a protected good or work in the market, they cannot subsequently prevent its commercialisation. The market in this instance is usually limited geographically.
Currently, AfCFTA member-countries have different policies regarding exhaustion of rights. Exhaustion means the consumption of rights in IP subject matter as a consequence of the legitimate transfer of the title in the tangible article that bears the IP asset in question.
Kenya, for example, operates international exhaustion, while Rwanda operates national exhaustion. These different laws and policies ought to be streamlined to provide for a regional exhaustion to facilitate the continent becoming one market in line with objectives of the AfCFTA.
Exhaustion occurs when the owner of an intellectual property right transfers ownership of a particular embodiment of that right, or when a consumer product is sold under a particular IP right. Geographical scope refers to the geographical limits within which the sale must take place, or the article must be manufactured, in order to trigger exhaustion.
Under national exhaustion, intellectual property rights to a particular article are exhausted only if it is sold or manufactured within the country whose IP laws the rights owner has invoked. With international exhaustion, the location of sale or manufacture is irrelevant, and any authorised transfer of ownership results in exhaustion.
Experts say apart from the general provisions on cooperation by member-states, the IP Protocol should also focus on IP regimes that are not sufficiently exploited in Africa; including geographical indications, plant variety protection and the protection of genetic resources, traditional knowledge and cultural expressions.
Geographical Indications
A geographical indication (GI) is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to the place of origin. In Africa, this type of protection is important since Africa’s agricultural products typically have qualities that derive from their place of production and are influenced by specific local geographical factors.
In 2017, the Africa Union adopted the Continental Strategy on Geographical Indications. The strategy recognises the importance of GIs as a tool for use in sustainable rural development and food security. Consequently, communities will be able to economically leverage the unique qualities of agricultural products based on their geographic areas of production. It is anticipated that the exploitation of benefits associated with GIs by local communities could result in economic empowerment, especially for women and youth.
Article 22.2 of the WTO Agreement on Trade Related Aspects of Intellectual Property (TRIPs) allows countries to determine which form of protection would be appropriate for geographical indications. In Africa, some countries such as Kenya and South Africa protect GIs under trademark legislation, while others such as Morocco and Uganda have separate legislations for it.
Protecting Traditional knowledge
Indubitably, Africa has a rich variety of knowledge and practices – cultures that are unique to individuals and communities. Â For this reason, the traditional knowledge of indigenous communities ought to be promoted in the IP protocol for socio-economic development.
In pursuance of this objective, experts suggest that the protocol should provide minimum requirements for the protection of traditional knowledge, genetic resources and cultural expressions. The traditional knowledge passed from generation to generation has resulted in the discovery of medicines and other innovative solutions. With proper guidelines on protection of traditional knowledge and cultural expressions, communities will be able to benefit economically through the transfer of this knowledge.
The protection provided must be defensive. This will empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation. Unfortunately, Africa has been guilty of failing to protect its numerous traditional and cultural knowledge. The Africans’ failure to defend and protect their traditional knowledge has left them at the mercy of western companies and intellectuals.
Going forward
The experts have suggested that for the AfCFTA to achieve its objectives, the IP protocol should focus on harmonising policy and laws by setting minimum standards and effectively tackling aspects of IP that are under-commercialised. It is projected that the protection of the IPs can open up revenue generating avenues for member-countries. In a nutshell, a strong IP regime across the continent will facilitate the growth of MSMEs and lead to increased job creation, especially for women and the youth.
But job creation could be largely dependent on Public Private Partnership (PPPs). Encouragingly, collaboration between the public and private sectors can positively instigate the collective capacity to respond with creative solutions that are necessary to move the continent forward. In the developed world PPPs have provided an alternative for research and development, and have the potential to close the gap between demand and supply in drugs, vaccines and treatment of diseases associated with poverty.
Reference
United Nations Africa Renewal.2021. Available (Â web:Â www.un.org/africarenewal)
(***The writer is a Development and Communications Management Specialist, and a Social Justice Advocate. All views expressed in this article are my personal views and do not represent those of any organisation(s). (Email: [email protected]. Mobile: 0202642504/0243327586  Â
