There is a re-emerging trade dispute between Nigerian and Ghanaian traders in Ghana, and the need to quell this dispute before it escalates to a sub-regional economic disaster is pressing.
Ideas.memo | Samuel Kwadwo Owusu-Ansah
Following recurring clashes between the Ghana Union of Traders Association (GUTA) and the Nigerian Union of Traders Association Ghana (NUTAG), the President of Ghana re-convened the Inter-Agency Taskforce on Foreign Retail Trade (hereinafter referred to as “the Taskforce”). The Taskforce resolved to clamp down on foreigners trading “illegally” with effect from Monday, 10th August 2020.
The commencement of the exercise resulted in the closure of shops and the forcible removal of mainly Nigerian retail workers from Tip-Toe Lane in Accra. This piece argues that government's inertia to fully implement the Economic Community of West African States (ECOWAS) trade protocols is to account for the intermittent trade disputes in Ghana and elsewhere. It will provide historical context for intra-community trade, assess the relevant legal framework, and offer some recommendations.
Historical Context Matters
African borders are artificial. African states have always been perceived by its inhabitants to be an economic unit without restrictions on the movement of goods and services. The watershed to this period of economic unity was the Berlin Conference of 1884 and the attendant segregation of Africa. The colonial powers for economic interest, established transportation systems complete with railways and road routes to induce migration and secure labour for the extraction of raw materials such as cocoa, gold, timber, rubber, and the like.
The wave of independence saw a brief semblance of a return to pre-colonial migration patterns with an estimated two and a half million West Africans living in other West African states, but this period was short-lived as economic decline owing to political instability, rocked the region and resulted in the loss of jobs and a poor standard of living in the region. Consequently, the heightened nationalist and anti-immigration sentiments pressured respective governments to issue mass expulsion orders in a majority of states including in Ivory Coast (1958, 1964), Senegal (1967), Guinea (1968), Sierra Leone (1968), Ghana (1969) and Equatorial Guinea (1974).
Building a Community...formally
These agitations lead to the establishment of ECOWAS in May 1975 in Lagos, Nigeria. The ambition to create a monetary and economic union was laid out succinctly right from the onset. One writer* intimates that “the formation of ECOWAS thus to a certain extent re-created the kind of pseudo-homogenous society that had once existed in the region.
Effectively, ECOWAS Protocol A/P.1/5/79 relating to Free Movement of Persons, Residence, and Establishment (hereinafter referred to as “The Protocol”) was adopted in 1979 and organised the pursuit of respective rights be divided into phases beginning with the right of entry, then the right to residence, thence the right to establishment. Supplementary protocols to implement the phases were passed in 1985, 1986, 1989, and 1990 and a decision for the adoption of a harmonised immigration and emigration form was made in 1992.
Further, the revised ECOWAS treaty of 1993 calls on state parties in Article (3)(1) to ensure “the removal, between member states, of obstacles to the free movement of persons, goods, services, and capital, and to the right of residence and establishment” and enjoins them in Article 59 to recognise these rights and take all necessary measures to ensure the rights are fully enjoyed by Community citizens.
A Laissez-faire national response
While the ECOWAS framework shows a willingness at community level to realise economic integration within the sub-region, this readiness has not been reciprocated at national levels. Countries have also enacted laws that are inconsistent with the Protocol, to enforce a system of indirect discrimination.
For instance, in the face of economic difficulty, Nigeria enforced a series of mass expulsions of West African citizens from Nigeria, with Ghanaians forming the majority in 1983 and 1985 respectively, in what has been colloquially referred to as “Ghana must go”. The Nigerian response is not an outlier post the formation of ECOWAS, other community members have also utilised mass expulsions to detract the economic activities of non-nationals in their country including Liberia (1983), Senegal (1990), Benin (1998), and Senegal (1999).
Crucially, the right to establishment is yet to be implemented. In Ghana, this has translated into recurring trade disputes between Ghanaian traders and mostly Nigerian migrant traders in major markets in the country.
The Ghanaian context: relevant local laws
Ghana has ratified all the supplementary protocols and has had a perfect record in implementing the policies under Phase 1 of the Protocol thereby making it the only country besides Sierra Leone to have done that. Ghana has further ratified all the major international human rights conventions related to migrant workers. The Labour Act (Act 651) provides equal protection to domestic and foreign workers in Ghana and provides access to equal remuneration and procedures for relief in case of violations of labour rights including the Commission on Human Rights and Administrative Justice (CHRAJ).
The Immigration Act 2000 (Act 573) also provides for “the admission, residence, employment and removal of foreign nationals and provide[s] for related matters”. The Act makes no distinction between ECOWAS migrant workers and migrant workers from other countries.
Further, the Ghana Investment Promotion Centre Act 2013 (Act 865), which replaces the former eponymous Act 478, retains the list of jobs (which includes retail jobs) reserved exclusively for Ghanaians in s.27 and further increases the minimum capital requirements in s.28 which now range from USD 200,000 to USD 1 million.
The Imperative Discussion
Since the Right to Establishment as provided for in the Protocol and the Supplementary Protocol A/SP2/5/90 on the Implementation of the Third Phase (right of establishment) is yet to be implemented, the consequent obligations are also yet to crystalline, therefore Ghana is not in breach of its Community obligations by maintaining Act 865. Further, whereas the right to residence as provided by Supplementary Protocol A/SP.1/7/86 on the Second Phase (right of residence) mandates member-states to provide equal access to job opportunities and protect the right of migrant workers to reside in the host country, it qualifies access to this right only when migrant workers satisfy conditions under the host country’s laws.
This right, therefore, does not confer the right to establish businesses in the host state as this falls under the Right of Establishment. Effectively, the resolution of the Taskforce to evict foreign retailers, to the extent that it is backed by local legislation in the form of Act 865, is legally sound.
it is hypocritical for the government to maintain policies counterintuitive to the ideal of economic integration, an ideal it claims to be committed to, in the name of pandering to local traders in an election year.
Nonetheless, to resort to legal technicalities as justification for these obvious acts of intimidation is myopic. What is required is an examination of the causes of these recurring troubles and to proffer solutions to curb their incidence. The ECOWAS Trade Liberalisation Scheme (ELTS), the core framework for market integration, enjoins states to embrace negative (removal of trade barriers) and positive (harmonisation of trade rules and technical standards) integration measures to guide a progression from an ECOWAS Free Trade Area to a properly constituted single market.
Whereas Ghana is a signatory to all these community laws and has expressed a zest to take a central role in the creation of the African Free Trade Area, it is hypocritical for the government to adopt and maintain policies which are counterintuitive to the ideal of economic integration, an ideal it claims to be committed to, in the name of pandering to local traders in an election year.
The government must stand by its principles on regional trade and refrain from adopting isolationist policies. In that regard, special provisions must be made for ECOWAS migrant workers separate from the provisions for foreigners not of ECOWAS citizenship. Further, Act 865 must be amended to provide for retail trading for ECOWAS migrant workers. To employ a Jane Eyre quote “laws and principles are not for the times when there is no temptation”. It will be similarly unfair to ignore the contributory practices of some Nigerian traders in the incidence of these trade disputes. I refer to the misuse of the rules regarding the free movement of goods originating from the ECOWAS market to funnel imported goods which they acquire at cheaper prices at Nigerian ports unto the Ghanaian market under the cloak of “originating goods”.
This practice makes it impossible for Ghanaian traders to compete and thus violates fair competition practices. Moreover, the Nigerian government must similarly refrain from imposing quantitative restrictions on goods and measures equivalent to the same as it did in the last quarter of 2019 by closing its borders. The utterance of the Public Relations Officer of the Ghanaian Ministry of Trade that;
If an ECOWAS country closed its borders and got our nationals and their goods stranded in the name of upholding their sovereign laws, why can’t we also do same; or they are saying that they are wiser than us; we will also uphold our sovereign laws, so from August 10 any foreigner who would be found wanting shall not be treated kindly at all
clearly shows that the decision of the Taskforce was retaliatory.
Given the intergovernmental nature of ECOWAS, it is unlikely that the governments of both countries will voluntarily back down from pushing national interests at the expense of regional union. To that extent, the ECOWAS Court of Justice must live up to its mandate and engage in the kind of creative activism that furthers community interests above all else. In that respect, it can look to the example of the European Court of Justice which has played the most crucial role in forging the European Union into the prosperous, supranational common market it is today.
* Adepoju, A. (2005). Patterns of migration in West Africa. In T.Manuh (Ed), At Home in the World? International Migration and Development in Contemporary Ghana and West Africa. Sub-Saharan Publishers, Accra.
Adepoju A. (2015) Operationalizing the ECOWAS Protocol on free movement of persons: Prospects for sub-regional trade and development. The Palgrave handbook of international labour migration (441-462). Palgrave Macmillan, London.
Awumbila, M., Benneh, Y., Teye, J.K., & Atiim, G.A. (2014). Across artificial borders: An assessment of labour migration in the ECOWAS region. International Organization for Migration (IOM)
Peil, M. (January 1971). The expulsion of West African aliens. Journal of Modern African Studies: a Quarterly Survey of Politics, Economics and Related Topics in Contemporary Africa, 9, 2. 205-229.
Twum-Baah K. A., Nabila, J. S. and Aryee, A. F. (1985). Migration Research Study in Ghana, 2. Accra: Ghana Statistical Service
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