This quote is taken from the AfCFTA Secretariat’s announcement of Nigeria’s gazetting of its AfCFTA Tariff Schedule, and I thought it presents an apt topic for this short article due to the use of the word ‘gazette’ and ‘domesticate’ rather interchangeably. This article is intended as lighthearted ‘educational’ material for people who seek a deeper understanding of these issues but are often confused by the jargon we use as experts.
The use of these terms caught my attention when I saw the post first on LinkedIn, but I reckoned it could be overlooked. But someone in my private chat is pissed off with the way those terms have been used interchangeably by the AfCFTA Secretariat. Fortunately, the HM’s statement avoided the conflation. So, even if just for academic purposes, let’s try to clarify the two concepts vis-à-vis what Nigeria just did. Since this kind of practice has not been subjected to adjudication before the courts in Nigeria, I’m offering what I believe to be the correct interpretation of the applicable laws.
Have we domesticated the AfCFTA Agreement? No, we haven’t. Domestication would require a specific Act of the National Assembly in line with section 12 of the Constitution.
However, not all elements of an international agreement require that process. If an element of an international agreement can be implemented domestically without any changes to an Act of the National Assembly, I’ve always held the view that such an element does not necessarily require section 12 procedure. I’ll explain with the example of Nigeria’s AfCFTA tariff schedule. Under section 12 of the Customs, Excise, Tariffs, etc (Consolidation) Act (1995) Cap C49 LFN 2004, the President, acting on the recommendation of the Tariff Review Board chaired by the HM of Finance) to impose, vary, or remove import and excise duties. This power extends to the ability to amend the schedules of tariffs, add new schedules, or delete existing ones.
In practice, acting under this power, the President could adopt the ECOWAS Common External Tariff (CET) many years ago as Nigeria’s general tariff book, and also now adopt the ECOWAS Tariff Schedule as Nigeria’s AfCFTA Tariff Schedule. Now, how ECOWAS came into this matter is another story, but let me tell it briefly. Because ECOWAS is a customs union to which Nigeria belongs, we are bound to apply a common tariff with all the ECOWAS Member States. Nigeria has been using the ECOWAS CET since 2015. In other words, we don’t have any other tariff book different from the CET, even though we have allowable deviations from the CET like every Member State—and we also have other deviations that we impose…just because… . I digress.
However, the AfCFTA is negotiated among countries as State Parties rather than the regional economic communities. That means every State Party must submit its tariff schedule, which shows that it has modified its national tariff to reflect the commitments under the AfCFTA (or any other trade agreement, for that matter). So, to meet the obligation to submit country-specific tariff schedules without breaching or scattering the ECOWAS CET, the ECOWAS member states came together to agree on and adopt a ‘common’ tariff schedule for the AfCFTA, which each member state can then present as their national tariff schedule.
So, what Nigeria just did is to formally sign and submit the AfCFTA tariff schedule agreed upon at the ECOWAS level as our national AfCFTA tariff schedule. To become effective, the tariff schedule needed to be gazetted and that we have done.
To the main question: have we, thereby, domesticated the AfCFTA? The answer is the difference between half empty and half full. Simply put: we have ‘domesticated’ a part of the AfCFTA Agreement relating to import tariffs. As I mentioned from the beginning, this part need not go to the National Assembly because the power to set or modify tariffs is vested in the President. But this raises a more nuanced legal question: can the courts in Nigeria recognise and uphold the gazetted tariff schedule? I’d say Yes and No. Yes, the courts can recognise it as Nigeria’s tariff book validly made under Nigerian laws that have authorised the President to do so. No, the courts can’t recognise it as ‘AfCFTA tariff schedule’ in the sense that it flows from the AfCFTA Agreement. That would require the courts to first recognise the domestic applicability of the Agreement in Nigeria, which, as we’ve noted, would require the ‘section 12 procedure’ to make that possible.
So, what has happened here is that the President has exercised his powers to set, modify or remove tariffs in favour of the AfCFTA, without waiting for the National Assembly to domesticate the Agreement. This procedure has its limitations: any element of the Agreement (and there are many of them) that requires a change in or is outrightly not covered by an existing law must go through the National Assembly and receive their blessing through the section 12 procedure. However, since we have entrenched the culture of not taking our trade agreements to the National Assembly for proper domestication, we can also milk this ‘executive domestication’ for other elements of the agreements. This would apply to every element that can be ‘domesticated’ by subsidiary legislation based on existing laws. For example, the Customs and Excise Act would contain provisions empowering the President or Minister to make regulations or issue guidelines on some matters. If those matters fall under the AfCFTA agreement, then the President or Minister can exercise their powers to make subsidiary legislation to adopt the specific requirements of the AfCFTA.
It would be interesting to have this matter settled by judicial pronouncement, but I’m confident that the courts would not deviate from the reasoning I’ve put forward here.
