- within Intellectual Property, Insolvency/Bankruptcy/Re-Structuring and Employment and HR topic(s)
- in United States
- with readers working within the Law Firm industries
INTRODUCTION
International trade agreements and policies provide a foundational framework for global commerce, shaping economic relationships among nations and ensuring a fair and predictable global trading environment. These international trade agreements and policies apply on a global, continental and regional levels and Intellectual Property ("IP") rights play a vital role within these frameworks in influencing global commerce, trade and economic development.
IP protection has profound significance in fuelling creativity, strengthening business competitiveness and promoting overall economic growth.
This article is focused on IP protection under international trade agreements within Africa, particularly under the Bangui Agreement, the Harare Protocol and the Agreement Establishing the African Continental Free Trade Area ("AfCFTA") (the "Agreement"). This article also analyses the benefits and challenges of Africa's single market framework in shaping IP regulation. As African economies become increasingly interconnected, the need for robust and enforceable IP frameworks becomes critical in ensuring equitable development and maximising the benefits of trade integration.
IP PROTECTION UNDER AFRICAN TRADE AGREEMENTS
Some of the notable cross-border trade agreements in Africa are briefly discussed below:
The Bangui Agreement
The Bangui Agreement is administered by the African Intellectual Property Organisation ("OAPI) and serves as a regional IP treaty for seventeen (17) French-speaking African countries1 . This treaty provides for a centralised system for the registration and protection of patents, trademarks, industrial designs, geographical indications, utility models, plant varieties, and sound marks by the OAPI member states. 2 This means that an application for registration of an IP right in one member state automatically applies in all of the other member states. This Agreement is binding and enforceable on the OAPI member states that have ratified and domesticated the Agreement.
The Harare Protocol
The Harare Protocol is administered by the African Regional Intellectual Property Organisation ("ARIPO") and specifically governs the protection of patents and industrial designs. It predominantly applies to Anglophone countries in Africa. Like the Bangui Agreement, it facilitates regional cooperation and a centralised registration system which allows applicants to seek IP protection across multiple jurisdictions through a single application process3And like the Bangui Agreement, the Harare Protocol ensures that registration under the ARIPO system provides an applicant with singular protection of its IP rights across all member states, without having to undertake individual registration in each of the other member states4 .
Since Nigeria is neither a member state of OAPI nor ARIPO and is therefore not subscribed to the Harare Protocol and the Bangui Agreement, this means that registration and protection of IP Rights in Nigeria can only be done by a direct application in Nigeria.
THE AGREEMENT ESTABLISHING THE AFRICAN CONTINENTAL FREE TRADE AREA ("AfCFTA").
The AfCFTA is the largest free trade area by the number of participating countries, involving 54 out of 55 member states of the African Union ("AU"). 5 Notably, only 24 members have so far deposited their ratification drafts since its inception on May 30, 2019. 6 Officially, trading under the AfCFTA regime commenced on January 1, 2021.7 The overall mandate of the AfCFTA is to create a single continental market8 , which is a major proposal in the AU's Agenda 2063 titled "The Africa We Want". 9 Nigeria has ratified the AfCFTA Protocol on Intellectual Property, which remains the sole African international treaty on IP currently enforceable in the country.
The Agenda 2063 provides a roadmap for inclusive, equitable and sustainable development on the continent, thereby fostering, amongst others, collective prosperity. The objective of the AfCFTA is to establish an integrated market for the free flow of capital and people, as well as the trading of commodities and services.10
There are several Protocols established under the AfCFTA11 which forms a comprehensive framework under the AfCFTA to promote the agenda for a single market, promoting sustainable development and the removal of trade barriers across the continent. These protocols include:
(a) the Protocol on Trade in Goods12;
(b) the Protocol on Trade in Services13;
(c) the Protocol on Rules & Procedure on the Settlement of Disputes14;
(d) the Protocol on Investment15;
(e) the Protocol on Intellectual Property Rights16;
(f) the Protocol Competition Policy. 17 (the "Protocols").
Practically, the Agreement through these Protocols provides for the reduction and progressive elimination of tariffs, improves market access for service providers across Africa, establishes transparent and predictable dispute resolution mechanisms, creates a stable and predictable environment for investors, harmonizes IP regulations and prevents anti-competitive practices. Indeed, the inclusion of IP in the Agreement reflects the critical position of IP rights in modern international trade.
AfCFTA Protocol on Intellectual Property Rights: IP in the Single Market
The above African frameworks localise and operationalise IP standards, ensuring that member states harmonise their intellectual property laws, simplify registration procedures, and enhance cooperation in the protection of IP rights; the systems existing in Nigeria under the OAPI and ARIPO frameworks were essentially fragmented. These frameworks were shaped by linguistic and colonial legacies. For example, the Bangui Agreement was predominantly adopted by Francophone African countries, while the Harare Protocol was predominantly adopted by Anglophone nations. These agreements/protocol also provided limited scope of protection with certain IP rights such as copyright, geographical indications, etc not being covered. This regional bridge has resulted in varying standards of protection. Such fragmentation has made cross-border commerce, innovation and IP enforcement cumbersome, creating procedural inconsistencies and limiting the potential for continent-wide harmonisation.
The IPR Protocol seeks to resolve the problems created by this fragmentation, bridging the divides by establishing a unified IP framework across Africa's single market. Specifically, the IPR Protocol promotes the continental IP harmonisation in Africa.18 By promoting consistent IP regulations, the IPR Protocol seeks to simplify trade among African countries, increase legal predictability, protect traditional knowledge, and encourage the transfer of technology. This harmonised approach helps address disparities in pre-existing frameworks and supports a more cohesive market structure. Presently, Nigeria has set up a central coordination committee to ensure adherence to the Protocol and facilitate legislative reforms to align Nigeria's existing IP frameworks with the IPR Protocol.19
The IPR Protocol covers key traditional and developing areas of IP such as copyrights, trademarks, patents, industrial designs, geographical indications, plant variety protection, utility models, emerging technologies, genetic resources and the protection of traditional knowledge.20 To facilitate this effort, the protocol also envisions establishing the AfCFTA Intellectual Property Office, which will work alongside existing national and regional IP offices to ensure coordination and uniformity. This is not envisaged under the Bangui Agreement and the Harare Protocol.
The harmonisation of IP laws under the IPR Protocol, through establishing baseline standards that state parties shall implement within their national systems, is expected to create a supportive environment for innovation, affording Africa an opportunity to develop a cohesive IP framework, uniquely protecting Africa's cultural heritage, and bolstering the continent's competitive standing in the global economy. By fostering greater consistency in IP regulations, the Agreement aims to stimulate intraAfrican trade, empower local innovators, and enhance access to vital knowledge and products, contributing to sustainable and inclusive economic progress across the continent.21
Opportunities Contained in the IPR Protocol
The Protocol mandates the corporation of state parties in the following areas (a) information sharing on national and regional IP policies, laws and institution; (b) identifying future intellectual property issues that necessitate common rule or harmonisation in Africa; (c) enhancing the use of open-source licensing, research cooperation and other collaborative models to stimulate innovation, incentivize university-industry linkages; (d) facilitating the transfer and diffusion of technology; (e) creating mechanisms for collaboration among customs officials, judicial authorities and other law enforcement agencies to address infringement of IPR; (f) enhancement of the use of geographical indications, collective marks, traditional knowledge and genetic resources to add value to the commercialisation of natural, agricultural, craft or industrial products and other traditional cultural expressions.22
The Protocol tasks state parties to automate and streamline intra-agency communications through the use of information and communication technologies for registration and administration processes. 23 It further stipulatesthat there should be enforcement procedures in place in Africa, which enable IP right holders to lodge a complaint in the event of suspicion of any infringement activity to competent authorities, including administrative or judicial.24 The above measures would help state parties streamline processes and establish a large market for the protection of IP rights.
Beyond regulatory alignment, the Protocol addresses Africa-specific concerns through the recognition of traditional knowledge25, traditional cultural expressions and folklore26. This is particularly significant in Africa, where traditional genetic resources are deeply embedded in our heritage, reflected in folk songs, plant medicine, cultural artifacts and indigenous knowledge systems. Historically, indigenous communities have faced challenges protecting their intellectual contribution from unauthorised use or commercialisation as these often intertwine across the continent. 27
The Protocol enhances cross-border cooperation by requiring state parties to share information and coordinate protection measures for traditional knowledge that exists across multiple member states.28State Parties must document traditional knowledge in national registers and share it regionally, while the AfCFTA Secretariat will create a continental database to prevent duplicate claims and ensure such traditional knowledge is recognised internationally as prior art against misappropriation through foreign patents.
Challenges in the Enforcement of the Principles of AfCFTA
The trademark and patents regime in Africa has been influenced by the multi-system approach practised across the continent. The IP space in Africa is essentially fragmented, with a plethora of initiatives and instruments at the regional levels. Indeed, overlapping regulation can create several issues, such as obscure policy objectives, complicate the development of clear and effective regulations and impose excessive costs on businesses due to repetitive processes, which undermines regulatory coherence.
Many African countries have assented to other key international frameworks including Paris Convention for the Protection of Industrial Property 1993, Berne Convention for the Protection of Literary and Artistic Works, 1886, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961, Convention on Biological Diversity, 1992, World Trade Organisation (WTO)- Agreement on Trade-Related Aspects of International Property Rights (Trips Agreement), 1994 and International Treaty on Plant Genetic Resources for Food and Agriculture with several national IPR regimes. For example, Nigeria is a party to about fifty-six (56) IP-related treaties, including agreements under the World Intellectual Property Organisation, World Trade Organisation, Economic Community of West African States and now the AfCFTA.29 The provisions of these treaties create several obligations which bind member countries.
The presence of multiple treaties creates a disconnect in IP policymaking, resulting in actual and potential conflicts in the implementation of these treaties. While international law generally takes precedence over national law, complications arise when multiple entities with international legal personality such as the WTO (for the TRIPS Agreement), WIPO (for various IP frameworks such as the Paris Agreement and the Berne Convention), and the African Union (for the AfCFTA IP Protocol), legislate on the same overlapping issues. This overlapping jurisdiction makes it difficult to establish a clear hierarchy of precedence as these entities all hold international legal authority
In addressing potential conflicts and inconsistencies, both the Agreement30 and its Protocol31 provide that its provisions would prevail when in conflict with other regional agreements. This establishes a clear hierarchy within the continent and reinforces the universal application across Africa. There are no provisions within the Agreement and the Protocol to regulate conflicts with other global agreements. Furthermore, Article 18(3) of the Agreement stipulates that the provisions of the Agreement "shall not nullify, modify or revoke rights and obligations under pre-existing trade agreements that State parties have with Third Parties." This provision, therefore, appears only to resolve the conflict of laws issue highlighted above only among African legislations, still leaving the conflict with other global legislations.
Given that, the AfCFTA IP Protocol sets baseline standards rather than replacing global agreements, its scope should be clarified, with clear-cut guidance as to its implementation, ensuring member states implement it consistently with international obligations. We note that Article 18(3) can serve as the principle for managing any conflicts, allowing baseline standards to coexist smoothly with global IP treaties and agreements.
Another major challenge is the lack of clear modalities for implementation. The IPR Protocol only mandates state parties to automate and streamline communications for efficient registration and administration processes.32 Due to the varying customs, religion, practices and inequitable development in several countriesin Africa, making it a one-size-fits-all approach to IP protection seems impractical without clear modalities guidance. It does not address issues relating to infrastructure for IP management, as some state parties may not have the capacity and infrastructure to facilitate the implementation of the provisions of the IPR Protocol.
CONCLUSION
While the AfCFTA Protocol on Intellectual Property Rights represents a pivotal advancement toward deeper economic integration across the continent, it must contend with and address several critical challenges. Chief among these are the wide disparities in the level of IP development among member states, insufficient infrastructure and institutional capacity for effective implementation, and the potential inconsistencies or conflicts between the Protocol and existing global frameworks. Addressing these issues will be essential to ensuring that the Protocol not only harmonizes IP regimes across Africa but also fosters inclusive and sustainable economic growth. Despite these challenges, it is anticipated that state parties will collaboratively navigate these challenges and in time, uphold the overriding objectives of the Protocol.
In Nigeria, although the Protocol has yet to be fully operationalized, proactive preparatory measures are being taken through national policy reforms, enhanced institutional and stakeholders' engagements, targeted capacity-building initiatives, and active participation in continental IP dialogues. Collectively, these efforts aim to align Nigeria's domestic IP framework with AfCFTA's vision of a unified African market, thereby positioning the country to effectively leverage the opportunities presented by the Protocol once fully implemented.
Footnotes
1 Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Republic of the Congo, Côte d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, and Togo. Nigeria is not a party to this agreement.
2 African Intellectual Property Organisation, "Agreement Revising the Bangui Agreement of March 2, 1977, on the Creation of an African Intellectual Property Organization" in https://www.aatf-africa.org/wp-content/uploads/2021/02/Bangui-agreement.pdf
3 African Regional Intellectual Property Organisation, "Protocol on Patents and Industrial Designs within the Framework of the African Regional Intellectual Property Organization (ARIPO)" in https://www.aatf-africa.org/wp-content/uploads/2021/02/Harare-Protocol2019.pdf (Accessed 19/05/25).
4 There are 22 members states under ARIPO namely Botswana, Cabo Verde, Kingdom of Eswatini, The Gambia, Ghana, Kenya, Kingdom of Lesotho, Liberia, Malawi, Mauritius, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Seychelles, Sierra Leone, Somalia, Sudan, Uganda, United Republic of Tanzania, Zambia and Zimbabwe. Notably, Nigeria is also not a member of ARIPO.
5 Ogbodo J.A., "Beyond the 'Spaghetti Bowl: Assessing The Role Of The Afcfta Protocol On Intellectual Property In Africa's Complex Regulatory Environment" Journal of Intellectual Property Law & Practice (2024) in https://academic.oup.com/jiplp/advancearticle/doi/10.1093/jiplp/jpae100/7908948 (Accessed 19/05/2025).
6 African Union, "About the AfCFTA" in "https://au-afcfta.org/about/" (Accessed 19/05/2025).
7 African Union, "The African Continental Free Trade Area" in https://au.int/en/african-continental-free-trade-area (Accessed 19/05/2025).
8 The Treaty, Art. 3.
9 African Union, "Agenda 2063: The Africa We want" in https://au.int/en/agenda2063/overview (Accessed 19/05/2025)
10 Market Access Map, "What is AfCFTA?" (January 31 2025) <https://www.macmap.org/en/learn/afcfta#headingId_WhatIsAfCFTA> accessed May 17 2025.
11 See generally, Art. 8 of the Agreement Establishing the AfCFTA.
12 African Union, "Protocol on Trade in Goods" in https://africanlii.org/akn/aa-au/act/protocol/2018/trade-in-goods/eng@2018-03-21 (Accessed 19/05/2025).
13 African Union, "Protocol on Trade in Services" in https://africanlii.org/akn/aa-au/act/protocol/2018/trade-in-goods/eng@2018-03-21 (Accessed 19/05/2025).
14 African Union, "Protocol on Rules and Procedures on the Settlement of Disputes" https://africanlii.org/akn/aaau/act/protocol/2018/rules-and-procedures-on-the-settlement-of-disputes/eng@2018-03-21 (Accessed 19/05/2025).
15 African Union, "Protocol to the Agreement Establishing the African Continental Free Trade Area on Investment" in https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/8533/download (Accessed 19/05/2025).
16 African Union, "Protocol to the Agreement Establishing the African Continental Free Trade Area on Intellectual Property Rights" in https://au.int/en/treaties/agreement-establishing-african-continental-free-trade-area (Accessed 19/05/2025).
17 African Union, "Protocol to the Agreement Establishing the African Continental Free Trade Area on Competition Policy" in https://portal.africa-union.org/DVD/Documents/DOC-AU-WD/EX%20CL%201394%20(XLII)%20Annex%201%20_E.pdf (Accessed 19/05/2025).
18 The Protocol, art. 3.
19 Anyanwu S., "Nigeria Advances Commitment to AfCFTA with Inauguration of Central Coordination Committee" in https://fmino.gov.ng/nigeria-advances-commitment-to-afcfta-with-inauguration-of-central-coordination-committee/ (Accessed August 18, 2025)
20 AfCFTA Protocol, Chapter Three.
21 ibid.
22 The Protocol, art. 23.
23 The Protocol, art. 24.
24 The Protocol, art. 29.
25 The Protocol, art. 18.
26 The Protocol, art. 19.
27 Handique P. and Dubey A., "Legal Mechanisms for Protecting Indigenous Knowledge" in https://www.journalisslp.com/index.php/isslp/article/download/2/2/3 (Accessed 8/06/25).
28 The Protocol, art. 18. and art. 19.
29 WIPO, "Nigeria" in https://www.wipo.int/wipolex/en/members/profile/NG (Accessed 8/06/25).
30 Agreement, art. 19.
31 IPR Protocol, art. 37.
32 IPR Protocol, art. 24
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
