Assent refers to the expression of approval, agreement or permission; especially nonverbal conduct reasonably interpreted as willingness. Assent is signified by means of a signature, mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. A signature is the formal indication of agreement with its content. According to Chirelstein, the requirement of assent which is fundamental to the formation of a binding agreement, implies in a general way that both parties to an exchange shall have a reasonably clear conception of what they are getting and what they are giving up.
Assent to the AfCFTA:
The African Union’s Extraordinary Summit on the 21st day of March, 2018 in Kigali, Rwanda was historic as forty-four African nations assented to the Agreement establishing the African Continental Free Trade Area (AfCFTA) or the Agreement, pursuant to Article 23 of the Agreement. Presently, fifty-two African nations except Nigeria, Eritrea and Benin have assented to the Agreement. The Agreement seeks to create the world’s largest free trade area which will increase intra-African trade from the current 19% to 52.3%, eliminate trade barriers among African states thereby facilitating free trade in Africa, reduce tariffs on goods by 90% and boost overall growth, create jobs and reduce poverty on the continent.
Generally, assent to an international agreement or treaty may or may not be subject to ratification depending on the intention of the parties. This is pursuant to Articles 14 and 12 respectively of Vienna Convention on the Law of Treaties 1969.
Assent Subject to Ratification:
An international agreement could provide for the subjection of assent to ratification, acceptance or approval as seen under Article 23 of the Agreement. Under such circumstance, the signature alone does not establish the consent to be bound, as it is a means of authentication and expression of willingness of the signatory state to proceed with the treaty-making process. In this regard, the signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and purpose of the treaty.
Assent Not Subject to Ratification:
On the other hand, an international agreement could obviate the need for ratification. In such circumstance, the agreement becomes binding on the state party upon assent in what is known as ‘definitive signature.’ Examples include most bilateral agreements (treaties) which deals with more routine and less politicised matters.
Withdrawal of Assent:
It has been said that all trade agreements, whether bilateral, regional or multilateral, are international treaties in nature. The enforceability of treaties is dependent on being a party to it. It is therefore expedient that international agreements contain provision for withdrawal as assent is based on volition of state parties. An example of a withdrawal clause is contained under Article 28 of the AfCFTA which allows a state party withdraw at the expiration five years from the date of entry into force in its respect and further requires that the withdrawal notice be in writing and effective two years after the receipt of same by the Depository.
Conclusion:
The AfCFTA upon its entry into force will create a continent wide free trade area with its attendant benefits and prospects for state parties that have assented to it, ratified and deposited their instruments of ratification. It is therefore ideal that all African nations including Nigeria express their intention to be bound by the Agreement (through accession) and take such steps to become part of the AfCFTA.
By virtue of Article 24 (1) of the Agreement, its entry into force is contingent on the deposit of twenty-two (22) instruments of ratification with the Chairperson of the African Union Commission. It is a fact that as of 30th April, 2019, the required minimum number of ratifications for the Agreement to come into force in accordance with Article 24 (1) has been achieved. The said article 24 (1) provides that ‘this Agreement and its Protocols on Trade in Goods, Trade in Services, and Protocol on Rules and Procedures on the Settlement of Disputes shall enter into force thirty (30) days after the deposit of the twenty second (22nd) instrument of ratification.’ Consequently, the Agreement came into force on the 30th day of May, 2019. In the circumstance, in order for Nigeria to be bound by the Agreement, the country needs to accede to the Agreement and subsequently deposit her instrument of accession with the Depository. It is worth noting that accession has the same legal effect as ratification and usually occurs after an international agreement or treaty has entered into force. In this vein, the Agreement will come into force in respect of Nigeria on the date of her deposit of her instrument of accession.