This article questions why harmonization has been adopted as the main goal of the Protocol on Intellectual Property Rights to the African Continental Free Trade Area Agreement (AfCFTA Agreement). The decision of the drafters of the Protocol to harmonize aspects of intellectual property law such as the exhaustion of intellectual property rights, trademarks, geographical indications, plant variety protection, and utility models is also criticized. Crucially, the article contends that, given the choice between cooperation and harmonization, the drafters of the Protocol should have opted for cooperation rather than harmonization due to the wide divergence in the level of development among African states and across various regions in Africa. Importantly, African states can agree to cooperate on specific matters relating to intellectual property rights without making the harmonization of all the rules of intellectual property rights across the African continent the principal objective of such an agreement. It is doubtful whether the harmonization of intellectual property law as envisaged in the Protocol on Intellectual Property Rights would be helpful to some African states, especially least-developed countries in Africa. Moreover, some of the provisions in the Protocol on Intellectual Property Rights constrain the policy space available to African states under international intellectual property law.
Legal Issues of Economic Integration