by Rafia Akram | Jun 30, 2022 | Blogs
On the 3rd of June, the Secretary-General (SG) of AfCFTA, Wamkele Mene, spoke at the 6th International Chamber of Commerce (ICC) Africa Regional Arbitration Conference. He addressed the Dispute resolution body at the AfCFTA. The crux of his message was that the AfCFTA had learned from the deadlock at the WTO and that dispute resolution would open Africa as a continent for business.
The SG highlighted that the emphasis is to improve the rule of law to allow for the resolution of costly and time-efficient disputes with a level of confidence in the system’s objectivity.[1]
This to Mene means allowing for a state-to-state arbitration system only, albeit a tiered system.[2] In his view, arbitration under the AfCFTA is, undoubtedly, integral to the successful implementation of the agreement.[3]
Three key institutions are provided for under the Dispute Settlement Mechanism (DSM), namely:
- The Dispute Settlement Body (DSB),
- The Adjudicating Panels, and
- The Appellate Body for second-tier review
The idea is to have a wide-ranging dispute settlement body that will oversee all the disputes that arise under the AfCFTA agreement, whether they are investment-related, trade in goods, trade in services, or market access-related disputes.[4]
It is worth noting that, in addition to the adjudicative process feature in the DSB, Adjudicating Panel, and the Appellate Body, State Parties may also choose to settle their disputes through the good offices of the Secretary-General or conciliation, mediation and arbitration, which may provide even faster track to resolve conflicts.[5] Many believe this will be the most used mechanism, as past practice clearly shows a preference for non-confrontational mechanisms.[6]
Mene sets out the Dispute Settlement Mechanism as a panacea to the deadlock at WTO, which will push African states to utilise African solutions and become the an example for other regions. However, the question to be addressed is will investors in the African economy believe that the rule of law is at the core of the AfCFTA? Will investors be reassured once this dispute resolution mechanism is set up even though it would only allow them to have indirect access to dispute resolution. Some investors may welcome any dispute resolution especially if it is to be found within a regulated environment where investors and states have responsibilities.
Two issues are at the heart of the efficacy of the system. The first is that the process only allows for state-to-state dispute resolution. Investors may prefer to utilise the AfCFTA as a second bite at the cherry. They may rely initially on ISDS in Free Trade Agreements (FTAs), Bilateral Investment Treaties (BITs), and perhaps even on the application of the Pan African Code on Investment in their home state and then proceed to utilise the dispute resolution mechanism at the AfCFTA.
The second linked issue is that there is no place for setting out conciliation and meditation with private actors as essential first steps before resorting to arbitration. The coming into operation of the Singapore Convention on Mediation has passed the continent relatively unnoticed, which is surprising as it would allow for longevity of investment and compromised solutions to ensure the least disruption to economic growth.
Despite Mene’s optimism, this dispute resolution mechanism may be no different from WTO, perhaps less used due to the African state’s preference to settle issues at the ministerial level through political means. AfCFTA has not taken the lessons of the deadlock to improve the system it has, utilizing a similar approach. The AfCFTA missed the opportunity to focus on commercial mediations and set up a plan that will be sidestepped in favour of investor-state dispute systems under the Pan African Code for Investments, FTAs, and BITs. Finally, the purpose for which the system was created, that is, creating a rule-based system that could be trusted, is absent.
The only solution would be to add an investor-State dispute system linked to the specialized negotiated texts in Phase II, especially investment negotiation, ensuring that the international law preference for lex specialis would ensure that private actors are confined to choosing a system and that they are encouraged to utilise conciliation and mediation.
[1] This follows the definition by Lord Bingham, the preeminent British authority on the Rule of Law.
[2] Article 20 read articles 6 &7 of the Protocol on Rules and Procedures on the Settlement of Disputes.
[3] Article 4 of the Protocol on Rules and Procedures on the Settlement of Disputes
[4] Article 4 of the Protocol on Rules and Procedures on the Settlement of Disputes
[5] Article 8 of the Protocol on Rules and Procedures on the Settlement of Disputes
[6] https://www.afronomicslaw.org/2019/08/19/a-future-court-without-cases-on-the-question-of-standing-in-the-afcfta-dispute-settlement-mechanism
by Rafia Akram | Nov 22, 2021 | Blogs
Rafia Akram and Maymoona Chaugley
For many, heading out to cast our vote may seem like a standard process with the only concern being who to vote for. For others, there is unsaid complexity that goes unseen by many and perhaps even the organizers of the elections. This begs the question of inclusivity. Are the organizers taking persons living with a disability into account? Before jumping into perspectives on inclusion, I would like to reflect on the experiences of Maymoona Chaugley, who details her various arduous journeys to cast her vote as a visually impaired citizen.
My reflections on the 2021 elections and earlier experiences – Maymoona Chaugley
Being completely blind I have never had a voting experience that I can say was confidential. When we hear terms such as “human right, confidential, freedom of choice”, I can say that this local government election (LGE) was my fifth experience where such a ‘right’ was infringed upon.
I have tried different approaches such as asking for assistance from my stepmother and my younger brothers. However, this ended up being a mess because they marked with a tick instead of a cross, which as you can imagine, I was not able to confirm. I even asked an Independent Electoral Commission (IEC) official to assist me in the last election, which was done in the presence of a party official. This experience was far from confidential. Would you believe that before I left that particular booth, the party that I voted for announced my vote to all present, and the other officials even asked my dad who he voted for seeing as his daughter had voted for the named party!
In 2021, I thought things would be better. I do not expect perfection, but I do expect a system that works to reasonably accommodate persons living with a disability to ensure a fair and free voting opportunity. In short, I expected a level of confidentiality. Sadly, my experience over the voting weekend was not a true reflection of what was advertised and campaigned by the parties.
On Saturday 29 October 2021, after registering for a special vote, I was accompanied to the voting station by my uncle and his wife, and when we got there I asked for a braille ballot. The official apologized, telling me that, unfortunately, they did not get the required stationary and that there was no braille ballot. All the official could say was “sorry”. I decided that I was not going to vote.
The presiding officer then announced that he could get the braille ballot by the following day on Sunday. I explained that I could not come back a second time and should not have had to. The presiding officer agreed to collect me from my house and assist me to vote and take me back home.
The next day, the presiding officer was true to his word and did come to fetch me. However, he explained that the braille ballot did not correspond with the print ballot; and he decided to be creative. He explained to the parties what he would do to accommodate me. The presiding officer took a metal stick and made one small dot next to each party so that I could feel the dot and count to 25 and 46 respectively. He then read all the names on the first ballot and took me to the booth where he allowed me to count them. Before I could make my mark with a cross, he confirmed that I indeed wanted to make my mark where my finger was. We repeated the process for the second ballot and thereafter, he assisted me to place it in the envelopes and walked me to place it in the box. Despite the fact that it worked and allowed me to cast my vote, it was not a confidential process, and I felt my need for dependence galling.
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These past local government elections have seen a lower voter turnout and the impact has reverberated across the political spectrum. Of the people who registered to use the special vote like Maymoona Chuglay above, eight out of ten people voted. This is an extraordinary turnout keeping in mind the hurdles faced.
It is now time to take stock not only of the political outcomes, which will have an inevitable economic and social impact, but to look forward to refining the system to ensure the a well-run election process that is inclusive of all South Africans. And that way forward can be reached through the use of technology.
Technology is a divisive subject in an unequal society where access differs widely depending on where in the country one is. South Africa has one of the largest ICT markets on the continent, and a smartphone penetration of 80% with 91% of South African adults with mobile phones. However, the internet is mainly used through smartphones and the internet penetration was estimated at 62% for January 2020.
This was one of the main opposing arguments raised by opponents of the proposal tabled by the IEC to Parliament for an electronic voting system in 2020, a process which was initiated as early as 2009. For this to take effect, the IEC needed to set a process in motion to change three legislations. The proposed amendments under the Bill seek to align three key pieces of electoral legislation, namely the Electoral Commission Act, the Electoral Act and the Local Government: Municipal Electoral Act to allow for an electronic voting system. Amongst the concerns raised was the risk of electoral fraud, hacking and the rigging of election results. There were also concerns raised about the costs of an e-voting system, given South Africa’s current fiscal constraints, as well as the exclusion of communities who may not have access to digital technologies.
Voting technology is advancing and the use of electronic or internet-based technology has been deployed across the globe in developed and developing countries alike. Pakistan, for instance, uses internet-based technology for overseas citizens, and Australia uses it specifically for those with a disability. 17 countries utilise Direct Recording Electronic (DRE) voting machines with and without voter-verified paper audit trail (VVPAT); among these are Bangladesh, France, India and Mexico. A true mixed bag of countries.
What would be the ideal system for South Africa? Certain requirements will have to be in place, particularly the legal infrastructure around elections.
Initially, it would need one singular voting system, which allows for a transition from paper to electronic, so that we can move away from paper over time, taking into account the fact that some voters will only feel comfortable with paper votes. It would also have to be a closed system so that there is minimal tampering with the vote itself. Finally and importantly, it would need to be inclusive and easy to use for people living with disabilities; providing options for voice, typing, and choice through easy scrolling. In such a system, a visually impaired person would review the ballot via speech output through headphones (voice) and use buttons to scroll through the ballot and choose candidates with certain accessibility features.
South African voters deserve a voting system that includes those living with disabilities, and not one that creates a separate stream for them. We must aim for an equal experience, one that facilitates inclusivity, confidentiality and independence for everyone.
