At the end of February 2025, the South African Cabinet decided to submit the AfCFTA Protocol on Women and Youth in Trade to the South African Parliament for approval to secure its ratification by South Africa^[1] The entry into force of this Protocol is governed by Article 23(2) of the Agreement Establishing the AfCFTA. It provides that the category of AfCFTA Protocols under which the Protocol on Women and the Youth falls, shall “shall enter into force thirty (30) days after the deposit of the twenty second (22nd) instrument of ratification”. Article 23(4) refers to their entry into force through accession.

Signature and ratification or accession of the AfCFTA Agreement (including its Protocols) by the AfCFTA State Parties take place “in accordance with their respective constitutional procedures”.^[2]

In terms of Section 231 of the South African Constitution the negotiating and signing of all international agreements on behalf of South Africa is the responsibility of the national executive, acting on instructions of Cabinet. Negotiating and signing are undertaken by the responsible Department (Ministry). The South African Department of Trade, Industry and Competition (the dtic) has been the Department responsible for the Agreement Establishing the AfCFTA, which includes its Protocols and Annexes.^[3]

An international agreement binds the Republic of South Africa only after it has been approved by resolution in both the National Assembly and the National Council of Provinces of Parliament, and an instrument of ratification or accession has been deposited by the executive branch of government. Parliament does not have to approve an administrative, technical or executive agreement, or an agreement which does not require either ratification or accession. The latter must be tabled in Parliament within a reasonable period of time.

The Protocol on Women and the Youth in Trade needs approval by Parliament and must be ratified. Article 24 of this Protocol applies: This Protocol shall be open for signature and ratification by the State Parties to the AfCFTA Agreement, in accordance with their respective constitutional procedures. This Protocol shall enter into force in accordance with the provisions of paragraphs 2 and 4 of Article 23 of the AfCFTA Agreement.

An international agreement becomes law in South Africa through an additional procedure; enactment into law by national legislation. (A self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.)

“National legislation” includes Acts of Parliament as well as subordinate legislation made in terms of an Act of Parliament; as well as legislation that was in force when the Constitution took effect and that is administered by the national government.^[4] Customary international law is law in the Republic of South Africa unless it is inconsistent with the Constitution or an Act of Parliament.^[5] When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.^[6]

The decision by the South African government to ratify the Protocol on Women and the Youth in Trade sets an important example in respect of an AfCFTA legal instrument which was subsequently added to the lists of Protocols (it is not mentioned in Article 7 of the AfCFTA Agreement^[7]), but for which there has been considerable lobbying and wide-spread support. The AfCFTA Agreement provides, in Article 8(3), for “any additional instruments, within the scope of this Agreement, deemed necessary, shall be concluded in furtherance of the objectives of the AfCFTA and shall, upon adoption, form an integral part of this Agreement”.

The entry into force of this Protocol will only be the starting point for the follow-up action required to ensure the objectives behind this important AfCFTA legal instrument will be met. The specific objectives of this Protocol are to support and enhance the participation of Women and Youth in Trade in intra-Africa trade; improve their inclusion in the implementation of the AfCFTA; strengthen the capacity of Women and Youth in Trade; enhance access to opportunities for them; promote value addition and innovation for increased imports and exports by Women and Youth in Trade; support the inclusion of women and youth into regional and continental value chains; and to support measures that promote the formalisation of the trade activities of women and youth.^[8]

This Protocol is not self-executing, the relevant State Parties must adopt domestic laws and measures to give it effect. They have also agreed on a Right to Regulate:

State Parties may regulate and introduce regulations on all trade activities related to women and youth within their territories in order to meet national policy objectives, in so far as such regulations do not in any way impair the rights and obligations arising under this Protocol. State Parties shall ensure that all measures of general application affecting all trade activities related to Women and Youth in Trade within the scope of the AfCFTA Agreement are administered in an objective, transparent and impartial manner.^[9]

Article 25 deals with application and says State Parties shall apply appropriate measures to bring effect to the rules and procedures set out in the provisions of this Protocol. They shall cooperate with each other in ensuring compliance and shall not take any measure inconsistent with the provisions and objectives of this Protocol. The State Parties “shall endeavour to harmonise their national laws, regulations and policies to ensure consistency with this Protocol”.^[10]

The achievement of the objectives of this Protocol also depends on inter-state activities, in addition to what the State Parties will do within their national jurisdictions. Article 19 of the Protocol refers to the Committee on Women and the Youth in Trade established by the AfCFTA Council of Ministers. It shall collaborate with other AfCFTA Committees, including in the areas of Intellectual Property Rights, Competition Policy, Digital Trade, or any other relevant bodies with a view to implement this Protocol. It will be important for national structures promoting the interests of Women and the Youth in Trade to engage with this Committee, which may also establish “subsidiary bodies as it considers appropriate for the effective discharge of its functions”.^[11]

^[1] tralac Daily News 27 Feb 2025.

^[2] Art 22(2) of the Agreement Establishing the AfCFTA

^[3] According to Art 1 of the AfCFTA Agreement, “Agreement” means this Agreement Establishing the African Continental Free Trade Area and its Protocols, Annexes and Appendices which shall form an integral part thereof.

^[4] Sec 239 SA Constitution.

^[5] Sec 232 SA Constitution.

^[6] Sec 233 SA Constitution.

^[7] Art 7 of the AfCFTA Agreement provides for the Phase II negotiations; when Protocols on Intellectual Property Rights, Investment, and Competition Policy had to be added.

^[8] Art 2(2) AfCFTA Protocol on Women and the Youth in Trade.

^[9] Art 5 AfCFTA Protocol on Women and the Youth in Trade.

^[10] Art 25(4) AfCFTA Protocol on Women and the Youth in Trade.

^[11] Art 19(2) AfCFTA Protocol on Women and the Youth in Trade.