The Protocol to the Treaty Instituting the African Economic Community (AEC) on the free movement of people in Africa

From 16 to 21 October 2017 experts and ministers of member states of the Africa Union in charge of immigration and forced displacement (refugees, repatriates and displaced persons) met in Kigali (Rwanda) to examine, in the capacity of a technical committee (TC) on migration, refugees and persons, the draft Protocol to the Treaty Instituting the African Economic Community on the free movement of people in Africa.

As the AU 2063 Agenda’s flagship project, the draft protocol is meant to materialize the commitments made by the member states to speed up the mobility and the integration of the continent. Despite the adoption and the enactment of the Abuja Treaty in 1991 instituting the AEC, the integration across the free movement of people has not achieved much progress in the continent, notably due to lack of political will both at the national and regional levels. In fact, Africans are still experiencing serious challenges in exercising their right to free movement provided for in the African Charter on Human and Peoples' Rights because of strict visa regulations, tough migration policies and xenophobic attitudes observed in certain regions of the continent.

The decision of the AU Executive Committee (EC) [EX.CL/Dec.908 (XXVIII)], which mandated the AU to elaborate a draft convention about the free movement of people before January 2008, focused therefore on harmonizing different national and regional policies in the domains of visa regulations, resident permits, and the right to settlement with the aim of offering African citizens the legal means to freely move from one country to another without any restrictions.

With the support from the International Organization for Migration (IOM), the AU Commission held four meetings [two meetings with independent consultants and two others targeting member state experts] to obtain a consensus document accompanied by an explanatory statement, signs of time, a draft implementation plan, which was studied by the CT.

The draft itself is a document containing thirty-five articles preceded by a preamble explaining in-depth reasons behind the development of the said Treaty. The seven chapters that form the treaty articulate the importance of the proposals, which were contained in the AU decision on the Protocol.

This is how, for example, it reckons all arguments relative to the development of tourism, intra-African investments, commerce, cooperation between the population as well as the movement and utilizations of skills on the continent, notably by providing for entry into the territory of a particular state «without visa restrictions» [Art.6 (1)], the establishment of an African passport [Art.10], the freedom of movement for students and researchers [Art.13] and of workers [art.14], the mutual recognition of qualifications [Art.18] the rights of residency [Art.16] and establishment [Art.17], the portability of social security benefits [Art.19], the protection of property acquired in the Host Country [Art.22], the transfer of funds (remittances) [Art.23] and the procedure for movement of specific groups (pastoralists, asylum seekers, refugees, victims of human trafficking, etc. [Art.24]

On the contrary, the project does not seem to take into consideration the progress already achieved in terms of protection of the rights of African citizens while omitting the fundamental principles of the treaty the respect of rights in line with the treaties ratified by the member states and the movement of people in the Regional Economic Communities as they focus on the «Progressive» implementation [Article 5] of the free movement of persons. In more than half of the RECs, the three phases mentioned have already been franchised by the states. The drafting of this article appears, therefore, awkward with respect to what has already been accomplished on the continent. It doesn’t at all appear to protect the rights of the worker [Art.14 (2) and Art. 16(2)] and the right to be accompanied by one’s spouse, a right that many African states recognized while ratifying the International Convention on the Protection of rights of all the migrant workers and members of their family.

Experts seem to have sidelined the possibility of an immediate enactment of the text just after its adoption by the deliberating organizations of the AU as had been requested by the EC since a provision on ratification [Art.32] was inserted in the section relating to the final provisions of the treaty.

We wish to point out, deploring it, the very limited participation of the African civil society in the drafting process of a text that is supposed to promote continental integration. As a matter of fact, only half a dozen experts derived from the African civil society participated in the first meeting organized by the AU Commission in Victoria (Seychelles) to examine the draft zero of the said project.

Overall, the draft protocol on the free movement of persons in Africa will be, once adopted by the Assembly of the Union in January 2018, a powerful tool in the hands of Africans to accelerate the integration process of the continent as reflected in Aspiration 2 of the African Union Agenda 2063.

* IBRAHIMA KANE who is Director of the African Union Advocacy Programme at Open Society Foundations.

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