What has happened?

The African Continental Free Trade Area (“AfCFTA”) has emerged as a pivotal opportunity that will set the framework for future trade across Africa. Amid the prospects, one of the challenges has been the fragmented and diverse regulatory environment, coupled with regulators adopting policies that are not conducive for multinationals to make investments and operate efficiently across Africa.

Following protracted negotiations, and industry consultations, the 37th African Union (“AU”) Heads of States Summit held on 17 – 18 February 2024, adopted the much anticipated AfCFTA Protocol on Digital Trade (“AfCFTA Digital Protocol”).

The AfCFTA Digital Protocol establishes an important legal instrument that will, through harmonized rules and common principles and standards, support and enable an acceleration of technology driven innovation and commerce in Africa. It focuses on promoting intra-African digital trade, enhancing cooperation on digital matters among State Parties, and creating a transparent, secure, and trusted digital trade ecosystem.

Why is this development important for technology companies operating in Africa?

The AfCFTA Digital Protocol covers important areas such as data governance, data protection, cross-border data flows, online consumer protection, cybersecurity and emerging technologies (including artificial intelligence). For multinational technology companies, that operate in several jurisdictions across Africa, this is particularly important given the historic and current challenges relating to limited regulatory and commercial inter-operability between jurisdictions, the high cost of compliance and transaction costs, and limited access to regional markets.

How can we help?

It is essential for multinational companies, to continue to engage regulators as the AfCFTA Digital Protocol enters into force. While the framework has been set out, it is expected that several annexures will be developed over the next few years, to give effect to the overall framework.

The Covington team has worked closely with the AfCFTA Secretariat, various African governments and leading multinational and African technology companies, contributing substantively to the development of the AfCFTA Digital Protocol as adopted by the AU Heads of States. Our team remains available to businesses as they navigate the AfCFTA Digital Protocol, particularly as it affects products and services offered at an individual company level.

Our team would be happy to address any questions you may have.

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Photo of Mosa Mkhize Mosa Mkhize

Mosa Mkhize is a policy advisor in the firm’s Africa Practice Group through which she provides strategic policy and regulatory advice to clients doing business with and across Africa.

Ms. Mkhize, a non-lawyer, has over a decade of experience in international trade and…

Mosa Mkhize is a policy advisor in the firm’s Africa Practice Group through which she provides strategic policy and regulatory advice to clients doing business with and across Africa.

Ms. Mkhize, a non-lawyer, has over a decade of experience in international trade and public policy. During this time, she has supported senior policymakers and private sector companies on a broad range of issues including policymaking and development, negotiating complex international trade deals, and advocating for policies and regulations related to science and technology. In addition to this, Ms. Mkhize’s capabilities include building strategic relationships and coalitions in support of smart technologies. Furthermore, she is currently working with government officials, private corporations, academia, and the general public on facilitating policies in the smart technology space.

Photo of Benjamin Haley Benjamin Haley

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in Africa and is a chair of the firm’s broader Africa Practice. With deep experience representing clients before regulators in high-profile white collar and disputes matters and a history operating on the…

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in Africa and is a chair of the firm’s broader Africa Practice. With deep experience representing clients before regulators in high-profile white collar and disputes matters and a history operating on the ground across the continent, he helps clients assess and mitigate complex legal and compliance risks in Africa and other emerging markets.

Complementing his investigations and dispute resolution practice, Ben has a broad-based compliance advisory practice, helping clients proactively manage compliance risk in areas including anti-corruption, anti-money laundering, fraud, and data privacy.

Ben represents corporate and individuals clients in a wide range of investigations and disputes, including:

  • Investigations under the U.S. Foreign Corrupt Practices Act (“FCPA”).
  • Investigations into anti-money laundering, financial crimes, anti-terrorism, and international trade controls issues.
  • Securities fraud and accounting matters.
  • Board investigations and shareholder litigation.
  • Insurance recovery.

Ben also regularly advises clients on a range of regulatory compliance and corporate governance issues. His compliance advisory practice includes:

  • Performing risk and compliance program assessments.
  • Leading compliance reviews on business partners and assisting companies with third-party risk management processes.
  • Conducting forensic accounting reviews and testing and enhancing financial controls.
  • Advising on market entry, cross-border transactions, and pre-acquisition diligence and post-acquisition integration.
  • Assisting companies in designing, implementing, and maintaining best-in-class compliance programs.

In recent years, Ben has steered a number of clients to successful resolutions and declinations in complex FCPA and corporate fraud matters with the U.S. Department of Justice and Securities Exchange Commission. In his advisory practice, Ben has served as lead compliance counsel on a number of major M&A transactions. He has developed special expertise assisting clients in leveraging technology in their compliance programs, including assisting one of the world’s largest consumer goods companies in the design and implementation of an award-winning compliance data analytics and monitoring system.

Ben has been described by the Chief Compliance Officer of one of his clients as “[a]n outstanding senior lawyer and advisor,” and “a guiding light for all things compliance advisory in Africa,” whose “advice is crystal clear, covers all angles and is business friendly.”

Photo of Deon Govender Deon Govender

Deon Govender is a vice chair of the Africa Practice Group. He focuses his practice on project development and corporate and project finance transactions across Africa, with particular emphasis on southern Africa. His experience ranges from advising on the development and financing of…

Deon Govender is a vice chair of the Africa Practice Group. He focuses his practice on project development and corporate and project finance transactions across Africa, with particular emphasis on southern Africa. His experience ranges from advising on the development and financing of renewable energy and thermal power projects and various other infrastructure assets in the transportation and telecommunications sectors. Deon’s experience additionally includes advising on financing independent power producer projects under the South African government’s Renewable Energy Independent Power Producer Procurement Programme.

Photo of Ahmed Mokdad Ahmed Mokdad

Ahmed Mokdad is an associate in the firm’s compliance and investigations practice in Africa. As a seasoned investigative specialist with deep experience representing clients across various sectors, he regularly assists clients across the continent navigate and mitigate a broad spectrum of regulatory and…

Ahmed Mokdad is an associate in the firm’s compliance and investigations practice in Africa. As a seasoned investigative specialist with deep experience representing clients across various sectors, he regularly assists clients across the continent navigate and mitigate a broad spectrum of regulatory and compliance risks and challenges.

Adding to his on the ground investigative, regulatory and compliance advisory experience, Mr. Mokdad has also extensively advised on litigious matters and financial transactions. Mr. Mokdad has been involved in several high profile litigious matters and international arbitrations relating to, amongst others, tax disputes and exchange control violations, corporate and commercial disputes, public procurement and white collar crime. He regularly performs risk and compliance program assessments, third-party risk due diligence, advising on pre-acquisition diligence and post-acquisition integration.