Analysis

From September 16-27, 2024, U.S. and Kenyan negotiators held their eighth negotiating round of the US/Kenya Strategic Trade and Investment Partnership in Washington DC. The trade talks for a stand-alone Free Trade Agreement kicked off under the Trump and Kenyatta administrations following an August 2018 meeting of the two Presidents. The Biden administration relaunched the negotiations in July 2022. At the time, the Biden Administration identified protecting American firms in its new industrial policy of increasing manufacturing to counter China. It also sought access to the Kenyan market for American genetically modified crops and dealing with corruption to ensure transparency in public procurement for American businesses as key objectives. In the meantime, President William Ruto, who was elected as Kenya’s fifth President in August 2022, continued pursuing a trade deal with the U.S. with zeal.

The "Special and Differential Treatment Reform in the WTO" by Aniekan Ukpe offers a thorough exploration of the complexities of trade law within the World Trade Organization (WTO), with a particular emphasis on the concept and reform of Special and Differential Treatment (SDT). Ukpe's work is both timely and relevant, addressing some of the most contentious issues in the multilateral trading system. At its core, the book focuses on the critical theme of reforming SDT provisions and practices within the WTO, offering a detailed examination of the current challenges and shortcomings inherent in these provisions. Ukpe conducts a thorough review of existing reform proposals, critically analysing their effectiveness and identifying gaps that have impeded meaningful progress. A central element of his work is the introduction of a unique, rules-based approach he terms "differentiated differentiation." This method advocates for defining agreement-specific or provision-specific criteria for SDT, ensuring that eligibility is based on objective and measurable factors related to a country’s capacity to implement specific rules, rather than on broad country categorization. The book goes beyond conceptual discussion by demonstrating the practical operationalisation of the approach, using the WTO’s customs valuation agreement as a case study.

Aniekan Ukpe’s book on Special and Differential Treatment (SDT) in the WTO is written at an inflection point in the World Trade Organization (WTO) and many other international organizations – one of increasingly deepening polarization between developed and developing countries and their respective coalitions. One of the central issues in the divide has been the non-fulfilment of developmental objectives set out in respective legal frameworks by international institutions, and the inability to reform. Negotiations on redressing SDT under the WTO have now stretched over 20 years in the Doha Development Round, with no middle-ground reached.

One of the longest running debates at the World Trade Organization (WTO) is how to best account for and address the unique needs of developing countries as they become integrated into the world trading system. This has raised a broad range of questions centering around three key issues— what are the specific needs of developing countries, what flexibilities are required to help members meet their commitments, and what support can be given to build capacity where it is needed most? But underlying these considerations that helped frame individual discussions was always the bigger question of whether the approach to special and differential treatment (SDT) was sufficient to account for the diversity of the organization’s membership.

The book “Special and Differential Treatment reform in the WTO” offers a comprehensive exploration of the conceptual, legal, and practical dimensions of the Special and Differential Treatment (SDT) within the World Trade Organization (WTO). It provides critical insights into how to reform SDT to reflect an appropriate relationship between levels of development and the commitments of members.

The book is a contribution to the debate and literature on reforming SDT in the WTO, particularly, how to define and delimit access to SDT in the WTO. The book interrogates the problem of access to SDT resulting from the lack of a concrete criteria to identify a developing country at the WTO or more aptly, a country with a justifiable need for SDT. It answers the question of how to accommodate different levels of development among WTO members, while ensuring that the costs of multilateralism are shared equitably.

China is the largest developing country with a GDP of USD17.82 trillion, while Africa boasts of a conglomeration of the highest number of developing countries under the largest regional free trade mechanism – the African Continental Free Trade Area (AfCFTA) – with a collective GDP of USD3.4 trillion. China is Africa’s largest bilateral trade partner. Trade between China and Africa stood at USD282 billion in 2023. China and Africa appreciate the significance of IP rights to fostering bilateral, and intra-regional (Africa), trade. Little wonders, therefore, international cooperation on IP rights forms a key strategy for achieving the objectives of China’s Belt and Road Initiative (BRI), and the AfCFTA agreement. As the 9th Forum on China-Africa Cooperation (FOCAC), which was established in 2000, holds in China from 4-6 September with possible focus on green energy, ICTs and technology development, it is important to examine the continued prominence of IP issues in China-Africa relations.

The Protocol on Intellectual Property Rights (IPR) Protocol aims to promote science, industrialisation, services, investment, digital trade, technology and technology transfer, and regional value chains. This aligns closely with the African Union's Agenda 2063, Africa’s collective blueprint for transforming the continent into a global powerhouse of the future. This analysis argues that the IPR Protocol offers a viable pathway for African countries to foster technology transfer, innovation and technological advancement by creating a unified market, encouraging innovation and competition, enhancing industrialization and infrastructure development, and strengthening human capital development.

There is quite some work that has been done on investment regulation and human rights protection in the context of Africa. One of such works is Fola Adele’s book, International Investment Law and Policy in Africa, Exploring a Human Rights Based Approach to Investment Regulation and Dispute Settlement (2018), where he discusses sustainable development and human rights protection. Most significantly, Adeleke acknowledges that the role and importance of public interest issues, sovereignty of states and other binding obligations that interfere with investment treaty norms have not been given adequate attention. This is why I welcome Dr. Dominic Npoanlari Dagbanja’s book “The Investment Treaty Regime and Public interest Regulation in Africa” with lots of admiration. This work does not only provide a wealth of resource for scholars seeking to research on such a thorny issue, but also serves as a fresh reminder of the important yet difficult conversation about the need for African states to recast future investment treaties in the light of their constitutional mandates and responsibilities.

When Kenya’s history is written, June 25, 2024 will live in infamy. It will be remembered as the day that an organic GenZ peaceful protest movement against financial austerity imposed by the government of President Ruto was repressed with a violent militarized response. Abductions and disappearances of protesters, internet shutdowns, extrajudicial executions, and threats of shutting down TV Stations signal that President Ruto is ready defend his vastly unpopular and unnecessary financial austerity measures at any cost. Even more, the deployment of the Kenyan Defense Forces in response to legitimate GenZ protests is inconsistent with Article 241 (2) (c) of the 2010 Constitution of Kenya that requires prior approval of the National. The deployment of these forces will only serve to militarily install austerity and to shut down legitimate protests and public debate.