Legal Instruments for Trade
and Transport Facilitation
for Africa:
AN ASSESMENT OF THE STATUS OF IMPLEMENTATION OF AGREEMENTS TOWARDS A
CONTINENTAL FREE TRADE AREA
Prepared for UNECA Experts Group Meeting
July 15, 2013
Addis Ababa, Ethiopia
by
OMETERE OMOLUABI
Consultant on Trade and Transport
teretu@gmail.com
Content
1.
2.
3.
4.
5.
6.
7.
Objectives/Purpose of Study
Methodology and Scope
Study Highlights
Specific Findings by Topic
◦ Maritime and Port Facilities
◦ Harmonization of Customs Procedures and Documentation
◦ Customs Transit Guarantees and Bonds
◦ Third Party Motor Vehicle Insurance Systems
◦ Trade Liberalization
◦ Free Movement of People
◦ Corridor Management Initiatives
◦ Transit for Landlocked Countries
◦ Interstate Road Transport
Key Reasons for non-Implementation of Legal Instruments
Recommendations for Improving Implementation of Legal
Instruments
Conclusions and General Recommendations
1. Introduction
Study 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).
Methodology:
◦ Desk Review of existing compendium of legal
instruments (2012) completed by
SSATP/UNECA/AU/AfDB
◦ Developed 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 practice
◦ Comparison of international best practices with
regional practice
RECs surveyed : COMESA, EAC, ECCAS,
ECOWAS, SADC
2. Study Highlights

Implementation 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 endusers.

Uninformed private sector results in non-compliance and lack of trust
in the regional systems

Poor coordination and communication between RECs and Member
States also accounts for a decent percentage of poorly implemented
instruments.
3.1 Maritime Port Facilities

Some progress has been made with regards to
adoption of key maritime conventions, such as the
1965 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.
Maritime Port Facilities:
Challenges to Implementation

Poor infrastructure and low use of ICT
for electronic data sharing, as
recommended in international
conventions

Low volumes of maritime transport
continent-wide, fewer investments have
been made in this regard.
MEMBERSHIP OF SSA STATES TO KEY LEGAL INSTRUMENTS GOVERNING MARTIME TRANSPORT
COUNTRY
Benin
Burkina Faso
Burundi
Cameroon
Cape Verde
Congo
Congo DRC
Cote d’Ivoire
Egypt
Gabon
Gambia
Ghana
Guinea
Kenya
Lesotho
Liberia
Mauritius
Madagascar
Mali
Malawi
Morocco
Nigeria
Senegal
Seychelles
Sierra Leone
Tanzania
Tunisia
Uganda
1961 Brussels
Convention on
carriage of
passengers by
sea
1965 London
Convention on
facilitation of
international
maritime traffic
1974 Athens
Convention on
Carriage of
passengers and
luggage by sea

1976 London
Convention on
limitations of
liability for
maritime claims
1978 Convention on
the Carriage of
Goods by Sea
(Hamburg Rules)
1991 Vienna
Convention on the
Liability of
Terminal
Operators
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3.2 Harmonization of Customs
Procedures and Documentation
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; use
of ICT to ensure compliance and risk management.
1977 Customs Convention on Mutual Administrative Assistance
1982 Geneva Convention on Harmonization of Frontier Control of Goods
WCO: Harmonized Commodity Description and Coding System (HS Convention)
WCO: ATA Convention on temporary admission (Istanbul Convention
WCO: Arusha Declaration on Customs Integrity
WCO: SAFE Framework of Standards to Secure and Facilitate Global Trade
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.
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.
Objective
Facilitate transit and establish harmonized regional transit
guarantees
International Legal TIR Convention; Goods should travel in secure vehicles or containers; Duties and taxes at risk should
Instrument
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.
RECs
Instrument
Key Elements
ECOWAS
1982 Convention A/P
4/5/1982 Inter-State
Transit Convention
(Lomé)
The Inter State Road Transit
Embraces the TIR Convention system,
(ISRT) Convention prescribed that however, its application in the region is
goods being transported within
faulty.
ECOWAS be covered by a
declaration document, otherwise
known as the ISRT logbook.
Inter-state Road
Transit Guarantee
Scheme (ISRT)
CEMAC
2010 CEMAC Regulation
No. 07/10-UEAC-205CM-21 establishing
regulation on legal
regime of community
transit and mechanism of
a single security or
guarantee
Evaluation/Challenges
This instrument seeks to facilitate The CEMAC attempt at regional
transit within CEMAC states by
guarantees has not been successful till
providing a mechanism for
date.
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.
COMESA
COMESA Treaty
(Annex I)
RCTG Agreement
(Ratified by 10
Member States)
SADC
Separates the customs
declaration procedures from
customs bond or guarantees.
Goods transit under Customs Trade
Regime while vehicles transit under
the COMESA Carrier License.
RCTG - Participating states set
up national sureties which are
regionally bound by signing
Inter-Surety
Inter-surety agreements. The
Agreement
Council of Sureties manages the
(Agreement entered Scheme and an Insurance Pool
into among the
underwrites the operations of
National Sureties
the RCTG. The RCTG is
participating in the acquitted in the National IT
Scheme)
systems.
Both the Regional Customs Transit
Document (RCTD) and the Regional
Customs Transit Guarantee (RCTG)
are functional in COMESA.
PTA Road Customs
Transit Declaration
Document (RCTD)
and RCTG
Burundi, Kenya, Rwanda and Uganda
are participating sureties, while
Djibouti, Ethiopia and DRC have
shown interest.
Goods in Transit
Guarantee
SADC operates transit bonds which
are national transit guarantees.
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.
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.
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.
Objective
International Best
Practices or
Relevant Legal
Instrument
RECs
Compensation for victims of traffic accidents caused by vehicles in transit
Vehicles 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 accidents
Instrument
Key Elements
ECOWAS
1982 Convention A/P 2/5/1982
Regulating Inter-State Road
Transport within ECOWAS
Both conventions make third The Private sector attests to the
party insurance mandatory brown card being a requirement
and prohibit combined
for vehicles at all border crossings
transport of passengers and in the region.
goods in the same vehicle.
However, the claims settlement
process can be lengthy in member
states, as is reported in Nigeria
and Ghana.
ECOWAS Brown Card
Protocol A/P 1/5/82 on the
Establishment of an ECOWAS
Brown Card
CEMAC
CEMAC Third Party Motor
Insurance Scheme (Pink Card)
COMESA
1993 COMESA Protocol for the
Establishment of a Third Party
Motor Vehicle Insurance Scheme
Works on collaborative
arrangement within Member
States and insurance
companies to secure
insurance claims in the event
of accident.
As 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
Evaluation/Challenges
The CEMAC Third Party Motor
Vehicle Insurance is functional
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.
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
1999 Revised Kyoto Convention, which is
a crucial element SSA states must
consider for advancement in trade and
customs matters.
Recommendation : Customs, Trade
and Transit Regimes

Member States should strive to incorporate
ICT in trade facilitation reform

Interconnectivity of Customs systems will
also enhance information exchange and
cooperation between member states.

ECOWAS should expedite the Regional
Customs Interconnectivity project
3.6 Free Movement of People
Updates on Free Movement

In 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 xenophobia

Way 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.
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, 2014

Member 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.
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 AbidjanLagos 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 rail
Way 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.
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 wide

Replicate SADC NTB reporting system which has had some successes in
Southern Africa

Member 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.
Success Story:
Tripartite NTB Reporting System
Available in EAC, COMESA and SADC
 The private sector can register complaints
along the corridors regarding harassment,
illicit fees or arbitrary application of rules
 According to FESARTA, Over 500 complaints
have been recorded, 80% from SADC region
 FESARTA plays a mediation role negotiate
with relevant member states to solve the road
transport complaints

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.
Vehicle Technical Standards across
RECs
RECs
Axle Load Limit
Max Load Max
Length
Max
Height
Max
Width
Single Axle
Tandem Axle Triple Axle
(tonne)
(tonne)
(Tonne)
Meters
Meters
Meters
CEMAC
13
21
27
50
18
4
2.5
ECOWAS
11.5
21
25
56
22
4
2.5
COMESA
10
16.5
24
46
22
EAC
10
18
24
56
22
2.5
4.2
2.65
Recommendation : Inter-state Road
Transport – Regulations and
Documentation

EAC should speed up
discussions at the legislative
assembly on the Axle Load
Harmonization Bill

ECOWAS: 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.
4. Key Reasons for nonImplementation of Legal Instruments

Lack of designated institutions at the national level to follow up with ratification process

Regional 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 Institutions

Lack of Knowledge and Poor Information Dissemination

Multiple memberships to RECs/ overlapping membership

Lack of Political Will

Poor Infrastructure to support Policies

Poor inter-agency coordination

Obsolete or Out-dated legal instruments
COMMON POLICY IMPLEMENTATION PROCESS
BOTTLENECKS
Policy will
affect national
resource
mobilization
capacity
Crossover between
ministries of trade
and finance or trade,
finance and ag
Financial
Institutional
Implementation
texts contradict
or do not
supersede
existing statutes
Structural
Example – national
export or import taxes
on goods covered under
ETLS
Implementation
anchoring is not
clearly defined
National Governments
need to ensure that
implementation texts
have force of law
5.
General Recommendations
Issue
Action
By Whom
1
Coordinate REC
programs with
member state
activities
RECs 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
States
2
Ratify
outstanding
Legal
Instruments
Assist 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
States
3
Monitor and
Evaluate
Progress
regularly
Monitor and evaluate progress made on each
instrument with a record-keeping matrix of all signed
legal instruments
RECs
4
Engage the
private sector by
making
information
available
Member States should make information available on
regional regulations for trade and transport, through
public awareness campaigns and signs along corridors
and borders.
RECs, Member
States
5
Keep track of
existing bilateral
agreements and
Ensure their coexistence in the least disruptive manner
with regional or international conventions. RECs
should keep a well-documented catalog of all trade and
RECs, Member
States
IDEAS FOR OPTIMIZING MEMBER STATE COMPLIANCE
Improve compliance
enforcement to
drive harmonization
and effectively
Reinforce
Commission
compliance advocacy
and support in
member states to
build buy in
Improve Monitoring
and Evaluation to
ensure informed
policy making
REC POLICIES ARE
EFFECTIVELY
IMPLEMENTED IN
MEMBER STATES
AND TRADE IS
FACILITATED
6. Conclusions

To 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 efforts

Shared Responsibility in Implementation – RECs, Member States,
Private Sector, Civil Society
Thanks for your attention!