FEDERATION OF WEST AFRICA CHAMBER OF COMMERCE AND INDUSTRY ( FEWACCI)

FEDERATION OF WEST AFRICA CHAMBER OF COMMERCE AND INDUSTRY (FEWACCI) STAKEHOLDERS CONFERENCE ON PROMOTING INTRA-ECOWAS & CROSS-BORDER TRADE.

STUDY ON THE PERSPECTIVES ON FREE MOVEMENT OF PERSONS, RIGHT OF RESIDENCE & ESTABLISHMENT BANJUL, THE GAMBIA 3 – 5 MAY 2010.

TABLE OF CONTENTS • Acronyms 3 • Introduction 4 • Phase I: Abolition of Visas and Entry Permit 6 • Phase II: Right of Residence 11 • Phase III: Right of Establishment 12 • Code of Conduct and Decision on Public Enlightenment Programme 13 • Other Challenges to the Implementation of the Protocols 14 • Recommendations for action 15 • Conclusion 16

ACRONYMS • A.D.R Alternative Dispute Resolution • ECOWAS Economic Community of West African States • ECA Economic Commission for Africa • ERA 2010 Economic Report for Africa 2010 • FEWACCI Federation of West Africa Chambers of Commerce and Industry • GIPC Ghana Investment Promotion Council • IRTG Improved Road Transport Governance • USAID United States Agency for International Development • SSATP Sub-Saharan Africa Transport Policy Program

1. INTRODUCTION • Current statistics indicate that intra-ECOWAS trade is currently about 11%, which is nothing to write home about. • According to the United Nations Economic Commission for Africa’s 2010 Economic Report for Africa (ERA 2010), intra-African trade continued to be minimal, at less than 10 per cent of total trade in 2009.

Africa continued to play a marginal role in world trade in 2009 with about a 3.4 per cent share of global merchandise trade and an insignificant share in trade in services. • Commodities continue to be the major exports, and export destinations remain concentrated in industrialized countries, although South-east Asia and Brazil are beginning to be important destinations for African exports.

The reliance on a narrow range of commodities as well as a narrow range of export markets makes African export earnings extremely vulnerable to volatility in these markets. • In the current global system, the need for enhanced trade among members of the regional body cannot be over-emphasized.

It makes business and economic sense for all stakeholders to appreciate the importance of allowing free flow of trade in the ECOWAS sub-region with the resultant growth in GDP, employment creation and poverty alleviation. • Furthermore, in this era of increased international cooperation and trade, where countries are removing barriers to trade to give their companies unhindered

access to larger markets such as the European Union, ASEAN, NAFTA, the ECOWAS region cannot continue to be just a group of fragmented markets failing to empower its companies to be competitive internationally and play a role in the development of the region. • The effect of the recent global economic downturn on African economies even

make it more imperative for African nations to trade among themselves and harness their own resources for development instead of relying on other nations. The Economic Report for Africa (ERA 2010) opines thus: "The current global economic crisis has demonstrated the vulnerability of Africa to the fortunes of the global economy. It has also demonstrated that Africa cannot rely on external sources to finance itsdevelopment in a sustainable

way. There is therefore a need for African countries to increase their efforts to mobilize domestic resources to finance development. In the final analysis, Africa's development is the responsibility of Africans, and the argument that Africa is a poor continent that cannot finance its own development is getting tired."

Therefore, the global economic crisis adds new urgency and credibility to mobilizing Africa's own resources of human and financial capital to ensure that Africans become “masters of their own destinies”. And one sure way to achieve this is through the promotion of trade and investment among our selves. • The ECOWAS Treaty which is the binding legal document regulating the affairs of the Community provides in Article 3(2)(d)

thereof, under its “Aims and objectives” as follows: “the establishment of a common market through: i) the liberalization of trade by the abolition, among Member States, of customs duties levied on imports and exports, and the abolition among Member States, of non-tariff barriers in order to establish a free trade area at the Community level;

ii) the adoption of a common external tariff and, a common trade policy vis-a-vis third countries; iii) the removal, between Member States, of obstacles to the free movement of persons, goods, service and capital, and to the right of residence and establishment.”

In order to achieve the aim of a common market, the ECOWAS Heads of State and Government saw the need to promote trade and investment in the ECOWAS sub-region through the adoption of a series of protocols. • One such protocol is the Protocol relating to the Free Movement of Persons, Right of Residence and Establishment. This protocol was to help actualize the aim of removing all obstacles to free movement of persons, goodsetc.

“The right of entry, residence and establishment which shall be established in the course of a transitional period shall be accomplished in three phases, namely: • Phase I - Right of Entry and Abolition of Visa • Phase II - Right of Residence • Phase III - Right of Establishment

Upon the expiration of a maximum period of five (5) years from the definitive entry into force of this Protocol, the Commission, based upon the experience gained from the implementation of the first phase as set out in Article 3 below, shall make proposals to the Council of Ministers for further liberalization towards the subsequent phases of freedom of residence and establishment of

persons within the Community and phases shall be dealt with in subsequent Annexes to this Protocol.” • The first phase was successfully implemented and so subsequently two further Protocols have been made to ensure the total removal of obstacles to the free movement of persons, goods, service and capital , and fully ensure the right of residence and establishment.

These Protocols were made in: • 1980 (first phase- Free movement of persons and vehicles) • July 1986 (second phase – Right of Residence); and • May 1990 (third phase – Right of residence).

In the light of these protocols and decisions, one may be tempted to believe that the free movement of persons and the right of ECOWAS citizens to reside and establish in the territory of any member state is a fait accompli and intra-ECOWAS trade is flourishing. • However, that is not the case as the implementation of these Protocols by member states has been anything but impressive.

The purpose of this paper is to familiarize the participants/FEWACCI about these protocols and decisions that have been adopted by ECOWAS to facilitate the free movement of persons, goods and services and the right of residence and establishment within ECOWAS states. • It further discusses the challenges and opportunities that are associated with the implementation of each phase of the protocol and recommends practical

actions that could be taken to ensure the full implementation of the protocols to promote intra-ECOWAS trade.

This study has been divided into eight sections. • It begins with the introduction to the study. • The second section gives an overview of the first phase of the protocol which is on the abolition of visas and entry permits and the movement of vehicles for transportation of persons and further

identifies some challenges to the full realization of the implementation of this phase. • The third section sets out the provisions on the second phase of the protocol which is the right of residence and identifies the main challenges and constraints in its implementation.

The fourth section gives a summary of the third phase on the right to establishment and the challenges hampering its full implementation. • The fifth section touches on the decision and resolution passed by ECOWAS setting out the Code of Conduct and Public Enlightenment programmes respectively for member states as to the

implementation of the protocol. • The sixth section identifies the challenges that have bedeviled the full implementation of all the phases of the protocol and the seventh section makes recommendations for practical action to be taken to actualize the full implementation of the protocol. • The conclusion appears in the final section of this presentation.

2. PHASE I – ABOLITION OF VISAS AND ENTRY PERMIT AND MOVEMENT OF VEHICLES FOR THE TRANSPORTATION OF PERSONS • The first phase of the protocol relates to the abolition of visas and entry permit and the right of movement of vehicles within ECOWAS states. Some of the provisions are as follows: • Any citizen of the Community who wishes to

enter the territory of any other Member State shall be required to possess a valid travel document and an international health certificate. • Any ECOWAS citizen can enter and stay in another ECOWAS country for 90 days without any visa once he enters through an official entry point, for example, airport or border posts.

Such citizen shall, however, be required to obtain permission for an extension of stay from the appropriate authority if after such entry that citizen has cause to stay for more than ninety (90) days. • However, a member state can refuse the admission of any individual into its territory if that person is inadmissible under its immigration laws.

In order to facilitate the movement of persons transported in private or commercial vehicles the following shall apply: • A private vehicle registered in a member state may enter another member state and remain there for 90 days upon presentation of the following documents to the competent authority of that Member State:

Valid driving license • Matriculation Certificate (Ownership Card) or Log Book. • Insurance Policy recognized by Member States • International customs documents recognized within the Community.

A commercial vehicle registered in a member state and carrying passengers may enter another member state and remain there for 15 days upon presentation of the following documents to the competent authority of that Member State : -- Valid driving license

Matriculation Certificate (Ownership Card) or Log Book. • Insurance Policy recognized by Member States • International customs documents recognized within the Community.

Both types are subject to renewal upon request when the permit expires. • In furtherance of increased movement of people, ECOWAS has issued ‘brown card’ insurance scheme for inter-state road transport to facilitate effective movement of persons, goods and services. (Agyei & Clottey)

Member States undertake to co-operate among themselves by exchanging information on such matters that are likely to affect the effective implementation of this Protocol. Such information shall also be sent to the Executive Secretary for necessary action in accordance with the provisions of the Treaty.

This protocol shall not operate to the prejudice of citizens of the Community who are already in residence and established in a Member State provided they comply with the laws in general and in particular the immigration laws of that Member State.

Expulsion and repatriation: • A decision to expel any citizen must be made known to the person, his government and the Executive Secretary of ECOWAS. • The expenses incurred in the expulsion of a citizen shall be borne by the Member State which expels him and his security must be guaranteed.

In case of repatriation, the government and Executive Secretary shall be notified. • The person to be repatriated must bear the cost and if he is unable to do so, then his government shall bear it.

The provisions of the present Protocol shall not affect more favourable provisions contained in agreements that have already been concluded between two or among several Member States.

In keeping with the provisions of this protocol, all ECOWAS member states have abolished visas and entry permits by citizens of the sub-region. • Indeed, the only documents required for travel within the region are a National ID Card or Passport and Health Certificate for Francophone countries and a Passport and Health Certificate for Anglophone countries.

Mail, for example, has gone a step further by actualizing the use of the ECOWAS passport but most others, including Ghana, have not done so. • But it is worthy of mention that the new Biometric passports launched in Ghana in March 2010 has ECOWAS boldly written on it, perhaps as a step in making travel within the sub-region easier.

This being the first phase in the implementation of the protocol, it came into effect several years ago but that has not been without challenges. • There continue to be difficulty in the movement of persons, goods and services across borders due to ignorance of public officials of the existence of, and provisions in the ECOWAS protocols mentioned above.

Even where such officials are aware of the protocols, they ignore or misapply the provisions. • Another factor is the ignorance of the citizens of member states of the existence of, and provisions in the ECOWAS protocols mentioned above.

Harassment practices also hinder the implementation of this phase, including the numerous checkpoints on the various corridors, leading to unnecessary delays and extortion of monies from passengers and cargo drivers. • In spite of ratifying the protocol which ushered in the free movement of persons in the sub-region, several border checks continue to exist.

This has resulted in severe harassment and extortion of money from travelers by security personnel at the numerous checkpoints. • Advocacy has been touted as one of the most relevant tools that have helped to achieve real change, thereby eliminating some of the factors impeding the free movement of goods, services and people within the ECOWAS sub-region and this

has been made manifest in the 9th Report of the Improved Road Transport Governance (IRTG) initiative. The report states thus: “The third quarter of 2009 shows slight improvement compared to the previous quarter. The three primary IRTG indicators have dropped. Efforts undertaken by states and awareness raising and advocacy campaigns

undertaken by civil society organizations in partnership with the initiative appear to explain the decreases.”

The IRTG initiative began in 2005 as a joint effort of UEMOA and ECOWAS financed by the United States Agency for International Development (USAID) and the World Bank’s sub-Saharan Africa Transport Policy Program (SSATP) with the West Africa Trade Hub as its implementing partner.

The objective of the initiative is good governance along primary trade corridors in West Africa. IRTG monitors trends in road harassment on the Tema-Ouagadougou, Ouagadougou-Bamako, Lomé-Ouagadougou and Bamako-Dakar corridors with the aim of eliminating the barriers, delays and bribes, which affect drivers along major interstate trade routes in West Africa.

There are reports of torture and killings by security personnel in countries like Senegal and Gambia. The killing of 44 Ghanaians in The Gambia by security agencies in 2005 constitutes an example of harassments and difficulties faced by citizens of member states in exercising their right to free movement within the sub-region (Ghanaian Times, 2007) (Agyei et al.)

FEDERATION OF WEST AFRICA CHAMBER OF COMMERCE AND INDUSTRY ( FEWACCI)