In February 2024, African heads of states adopted a draft protocol to regulate digital trade within the continent. This significant yet challenging course for Africa’s digital economy fits into the broader trade agreement, designed to create a single continental market for free movement of goods, services, capital and people. Franziska Sucker explains the protocol, why it matters and what still needs to be done. What is digital trade, and how big is it in Africa? Digital trade refers to cross-border exchange of goods, services and other tradable items that is enabled by digital technologies. Africa’s market share of the digital trade globally is small. But it has expanded rapidly, outpacing the global average. For example, between 2005 and 2021, global digital service exports increased by 40.52%, while Africa’s surged by 91.53%. This, coupled with low intra-continental trade, the presence of 11 of the world’s fastest-growing economies, and a young, digitally eager population of almost 1.5 billion, positions Africa as having the world’s largest untapped digital growth potential. What’s in the protocol? The protocol represents a consolidated pan-African approach on digital trade issues, paving the way for regulatory convergence and common standards. It stipulates rules for both traditional trade and digital trade-specific issues. Digital trade-specific issues include data governance, business and consumer protection, digital trade facilitation and digital inclusion. For most of these specific issues, the protocol establishes a series of national-level implementation obligations. Sometimes it is quite specific. For example, it mandates governments to ensure private entities adopt and disclose their personal data protection and cybersecurity policies. In other areas it grants wide discretion such as determining the adequate level of data protection. The state parties are required to specify the protocol’s regulations on a range of topics. These include digital payments, data transfer, source codes, digital identities, financial technologies, emerging technologies and online safety. Importantly, the protocol sets a default allowing the free flow of data. This means that, generally, firms must be allowed to transfer data, including personal data, outside Africa. Also, it bans data localisation, meaning firms cannot be required to store and process data locally. It also bans customs duties on digitally transmitted products. And it prohibits governments from forcing firms to reveal their software’s source codes. Why does it matter? It’s significant because there aren’t global rules governing digital trade. Ninety countries are discussing regulations under the World Trade Organisation’s Joint Initiative on E-commerce, but so far without results. This leads to two primary issues. First, existing trade categories (services, goods and intellectual property) don’t cover all items whose trade is digitally enabled. Some are left unregulated. Examples include smart devices (like smartphones and smartwatches), value packs (like combined internet and TV services), and purely digital items (such as files for 3D printing, electronic books and video games). Second, existing WTO agreements don’t address the digital trade specific issues such as data protection, cybersecurity or digital payments. This complicates digital transactions across borders. This fragmented regulatory landscape leads to legal uncertainties and high compliance costs. The protocol thrashed out for Africa aims to address these gaps. What are the three biggest benefits for African countries? First, it will strengthen African digital firms. Greater alignment of national regulations across Africa will increase legal certainty and increase interoperability across the continent’s systems. This will enable smoother cross-continental data flows, and in turn:
Improving the business climate in this way will help position African digital firms and start-ups for growth and possibly disrupt monopolistic markets. It is also likely to lead to international firms setting up local operations. Second, it will level the playing field between African countries. In the absence of common standards and regulations, firms can be tempted to gravitate towards regions with less stringent rules to reduce cost and increase profits. This can undermine policy objectives. This is particularly true in critical areas like data protection, which safeguards user privacy. Some countries might lower their standards to attract foreign direct investment. Having a set of rules for everyone reduces the risk of a regulatory race to the bottom. Third, it would increase Africa’s impact in global digital trade rule making. Global digital trade rules are mostly shaped by a small group of developed countries. By consolidating their position and forming a cohesive bloc, African countries can:
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