The Free Movement of Persons Protocol: Ways to move forward

25 November 2022

The Free Movement of Persons Protocol: Ways to move forward

Guest Interview: Allan Hirsch 
Emeritus Professor of Development Policy and Practice at the Nelson Mandela School of Public Governance, University of Cape Town (UCT)

What explains countries’ hesitance to commit to the Free Movement of Persons Protocol, when so many have ratified the AfCFTA?

"There are several factors. Firstly, it was not so hard for a country to ratify the AfCFTA, as countries had already agreed that free trade would not come into force until several sensitive issues had been agreed upon: rules of origin, schedules of tariff concessions, and schedules of commitments on the five priority service sectors (business services, communications, finance, tourism, and transport). Some of these issues have not yet been finalized. In contrast, the Free Movement of Persons Protocol was to come into force as soon as 15 members states ratified the treaty and deposited their instruments of ratification in Addis Ababa.

This said, the Protocol will come into force only for those countries that have ratified it. And initially, only the first of the Protocol’s three phases will come into force. Moreover, the Protocol’s safeguards allow countries to suspend the Protocol if their concerns cannot be dealt with through normal immigration procedures.

Another reason for the hesitance is the fear of destabilization. Some of Africa’s richer countries are concerned that once the Protocol comes into force, they will experience a sudden influx of low-skilled economic migrants from poorer countries from all over this vast continent. In fact, the Protocol has safeguards against this. Still, the perception remains, and very few richer countries have signed the Protocol, let alone ratified it.

Some countries feel that adequate systems of population registration, passporting, the exchange of criminal records, extradition arrangements, and similar forms of cooperation in or between many countries are not yet in place.

Even the term “free movement” is confusing. Even though the Protocol specifically refrains from referring to movement independent of the laws of the host state, some countries seem to fear that unregulated movement on their territory will be the outcome.

In my view, the roadmap that accompanied the Free Movement of Persons Protocol was too ambitious. It added to the unnecessary panic."

What safeguards does the Protocol offer countries that are concerned about losing control over inward migration?

"First, states that join the Protocol may express reservations regarding certain elements of the agreement. Second, they can add procedures for certain categories of migrants. Third, in some circumstances, the Protocol may be suspended. And fourth, states are allowed to withdraw from the Protocol.

How does the Protocol distinguish between visa-free entry for short-term visitors, and the right to longer-term stays and employment and residence? The Protocol’s implementation process has three phases. At the beginning, only Phase I would be activated for countries that fully ratified the Protocol. Essentially, Phase I allows visitors visa-free access for three months. Phase II allows residence and will only come into force after the African Union’s Executive Council considers the implementation of Phase I and agrees to enforce Phase II.

Phase III affords the right to establish a business. Like Phase II, Phase III will only come into force after the African Union’s Executive Council considers the implementation of the prior phase— Phase II—and agrees to move forward.

In any of these phases, a host government may require foreigners to apply for a work permit and may manage those work permits with domestic legislation. This said, I can see how government officials would find it difficult to understand how all the pieces fit together, especially when it comes to security issues."

What role do regional blocs play in encouraging the free movement of people? Do regional visa reforms sometimes extend to countries outside of a regional bloc?

"Some regional blocs have already advanced quite far in lifting restrictions in cross-border movements. The two most advanced regions, the East African Community (EAC) and the Economic Community of Western African States (ECOWAS), allow in some cases for passport-free cross- border travel within the region. They have even been moving towards adopting regional passports.

What is interesting and important is that within each region, it is possible for some member countries to move ahead without the participation of all the members of the regional group. A recent report* to the African Union on regional integration within the EAC states, “There is ongoing migration from the national passport to an EAC passport but not all states are issuing the regional passport. The EAC citizens of Kenya, Rwanda and Uganda move freely between the three countries using either their national identity cards or the EAC passport. This is a result of removal of mobility restrictions enacted by Heads of State in 2013. On the other hand, Tanzania and Burundi require a passport for East Africans. Free movement has enabled the EAC to make significant progress in the area of social integration. Kenya, Rwanda and Uganda have also facilitated the right of establishment, the right of residence and access to the labour market for their citizens across the three states.”

The Protocol does not exclude this “variable geometry” within regional economic communities. On the contrary: it would seem to be a valuable form of progress, which could eventually bring other members of the economic community into the fold.

Indeed, because of the proximity of countries in regional groupings and their greater familiarity with each other, I think it likely that free movement will advance first among groupings within regional communities. In the future, there may well be scope for agreements on the movements of persons between like-minded regional economic communities—inter community agreement, as it were."

What mechanisms or drivers could encourage uptake of the Protocol?

"It is easier to work with countries in the neighbourhood, which already have close relationships and generally enjoy more mutual understanding. Engaging with more distant countries could be facilitated by using common standards for documentation, the exchange of information, and agreement on procedures for dealing with undesirable immigrants, such as criminals. Other mechanisms for promoting understanding should also be strongly supported: for example, cultural exchange programs and the like."

**African Union. Report on The Status of Regional Integration in Africa: 4th Mid-Year Coordination Meeting Between The African Union,The Regional Economic Communities And The Regional Mechanisms. 17 July 2022, Lusaka, Zambia

Alan Hirsch is Leader of the Migration Governance Research Program of the New South Institute; Emeritus Professor of Development Policy and Practice at the Nelson Mandela School of Public Governance, University of Cape Town; and Research Associate at School of Oriental and African Studies, University of London.

Download the report (pdf)