The inclusion of rules of origin (RoO) in the African Continental Free Trade Area (AfCFTA) Protocol on Digital Trade (DTP) marks a significant innovation in international trade law, extending a mechanism traditionally confined to trade in goods into the digital domain. Overall, the DTP’s RoO regime signals a bold but fragile attempt to align digital trade liberalization with developmental objectives. However, by conditioning preferential treatment for electronically transmitted digital products on origin status, the DTP seeks to advance regional digital industrialization and ensure that the benefits of market access accrue to African enterprises, platforms, and content creators. Yet the framework’s reliance on ownership and control criteria, coupled with asymmetrical treatment of enterprises and platforms and a fragile ‘substantial business operations’ test, creates opportunities for strategic structuring and ‘digital origin engineering’. These design gaps risk privileging nominally African actors over those substantively embedded in African economies. We further show that, by distinguishing between African and non-African electronically transmitted digital products, the DTP opens the possibility of imposing import charges on the latter, an approach that reconfigures fiscal and industrial policy space but risks tension with multilateral norms.
Global Trade and Customs Journal