EA private sector unhappy with Non-Tariff Barriers law

The Act sidelines their inputs

Thursday March 29, 2018

By Joe Lihundi

Tranquility News Reporter, Arusha

The private sector has lashed out the East Africa Legislative Assembly (Eala) for omitting its inputs in the East African Community Elimination of NTBs Act, 2017.

The East African Business Council (EABC) Executive Director, Ms Lilian Awinja, said the business community in the region wants Eala to review the Act as soon as possible in a bid to incorporate its views.

She wondered that the Eala Committee on Legal and Judicial Affairs had consulted the private sector and included its concerns in the Bill only to find them missing in the enacted text.

The objective of the Act is to enhance and facilitate trade in the region by providing a legal framework for the removal of NTBs and a mechanism for identifying and monitoring their elimination.

“The Act has a good intention of eliminating NTBs, but with various limitations inserted in it, the objectives will not be achieved,” Ms Awinja said on the sidelines of a workshop on Tuesday.

The workshop, which attracted trade experts and activists from across the region, aimed at developing a draft EAC Export Promotion Strategy 2017-2022 and the Simplified Trade Regime (STR) for Youth and Women.

East African Business Council Executive Director Lilian Awinja

Ms Awinja criticised the Act saying time frames for eliminating identified NTBs are too long and dependent on long and winding EAC processes such as bilateral talks.

“The Act gives partner states leeway to eliminate NTBs at their own pace which is not helpful to the business community, as some of their goods are perishable,” she said.

Ms Awinja said owing to the principle of consensus, Article 17 of the Act on sanctions will be difficult for the EAC Council of Ministers to implement.

The Article says the council may recommend to the Summit to impose any sanction against a partner state that fails to comply with any directive, decision or recommendation of the council.

“Much as the Council of Ministers is also an interested party, it cannot recommend sanctions on a partner state,” argued Ms Awinja, proposing that the East African Court of Justice (EACJ) should determine the matter, as it is an independent and non-political arm of the community.

She further proposed that the Alternative Dispute Resolution Mechanism, arbitration by the Trade Remedies Committee and Petition to the EACJ, should be an integral part of the procedure to eliminate NTBs.

“Where a dispute is not resolved within a specified time frame, next steps should be automatic,” Ms Awinja said.

She said the Act compels an NTB to reach the Trade Remedies Committee through the Council of Misters only.

EAC Director General of Customs and Trade Kenneth Bagamuhundu.

Similarly, an NTB can only reach the EACJ if concerned parties are dissatisfied by decisions by the Council of Ministers or the Trade Remedies Committee.

“Council being a political arm of the community is likely to be subjected, given partner states interests and the fact that it depends on consensus to arrive at a decision,” she said, adding:

“We all know that the Council of Ministers has a scheduled time to meet; there should be a way which allows us to recourse to the EACJ when the Council of Minister goes on with the process.”

Ms Awinja said directives of the Council of Ministers are often grossly ignored, citing a dispute on Railway Development Levy Kenya had once imposed on the private sector.

The EABC reported the NTB to the EAC Sectoral Council on Trade, Industry, Finance and Investments which directed Kenya government to stop charging companies from the region.

“Immediately thereafter, the United Republic of Tanzania imposed the same levy in pure disregard of the directive by the Council of Ministers,” she explained.

Mr Kenneth Bagamuhundu, the EAC Director General of Customs and Trade, concurred with Ms Awinja in an interview, saying removing tariff barriers was much easier than NTBs.

However, the EAC Principal Trade Officer, Ms Monica Mihigo, allayed the private sector’s fear of NTBs to continue taking their toll on businesses, saying the secretariat has already initiated a process of reviewing the Act.

All partner states are required to submit their concerns pertaining to the Act to the sectoral council by September 28, 2017, ahead of the council’s meeting to be held in Nairobi, Kenya, later this year.

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