On the eve of the 20th Agoa Forum 2023, the Biden Administration announced significant changes to the list of sovereign states that will be eligible for preferential trading access under the African Growth and Opportunity Act (Agoa). For 2024, the White House has reinstated the eligibility of Mauritania and terminated the eligibility of Central African Republic, Gabon, Niger and Uganda.
These actions carry significant domestic and foreign policy implications. One of the most important is that they will reinforce the notion that the Biden Administration sees Agoa as a useful tool for coercing African governments into alignment with US national security and foreign policy interests. That may be welcomed by Members of Congress. However, it could also lead to blowback from African governments.
Background context
Each year, a sovereign state must be deemed eligible by the US government to qualify for preferential trading access under Agoa. The rules require that these determinations be formally transmitted 60 days in advance of the next calendar year. A few weeks ago, the Biden Administration briefed Congressional committees on the outcome of their annual review of eligibility determinations.
In those closed door briefings, Administration officials reportedly indicated that they would formally transmit those eligibility determinations to their legislative counterparts before the start of the forum. Last week, the Assistant US Trade Representative for Africa, Constance Hamilton, appeared to walk back that self-imposed commitment during a digital press briefing. That led to media coverage at home and abroad.
Eligibility criteria
To qualify for preferential trading access under Agoa, a sovereign state must meet a specific set of eligibility requirements. These include establishing or making âcontinual progress toward establishing a market-based economy, the rule of law, political pluralism and the right to due processâ.
They also include eliminating barriers to US trade and investment, enacting policies to reduce poverty, combating corruption and protecting human rights. Perhaps most importantly, its government cannot act in a manner that undermines US national security or foreign policy interests.
This is the requirement that took centre stage in the diplomatic spat between South Africa and the US over the summer. After the US Ambassador to South Africa, Reuben Brigety, levelled allegations of Russian arms trafficking against the South Africa government, senior Members of Congress sent a bipartisan letter to relevant federal agencies that called into question whether the government of South Africa had forfeited âits eligibility for trade benefits under Agoa due to the statutory requirement that beneficiary countries ânot engage in activities that undermine US security or foreign policy interestsâ.
This politicisation of the eligibility criteria was a major factor in the breakdown in the strategic partnership between South Africa and the US over the summer.
Decision-making process
The determination of whether a particular sovereign state meets the eligibility criteria rests with the White House.
Josh Meservey, a senior fellow at the Hudson Institute, says that these determinations have âalways been a bit politicalâ. That is perhaps not surprising. The eligibility criteria are not defined in the legislation using objective criteria. There are no benchmark indices. This leaves the eligibility status of any particular sovereign state open to textual interpretation by political actors in the executive branch.
According to Cameron Hudson, a senior associate at the Centre for Strategic and International Studies, that has serious consequences. It means that the White House âcan wield it however they wantâ. In the words of Hudson, the White House âcan always make an argument for why a country can be included or excludedâ.
In the case of the Biden Administration, Meservey believes that the White House has wielded Agoa in âa haphazard wayâ. Part of the problem is that there is no core logic being systematically used to determine what potential beneficiaries are eligible.
âThe only thing that I can see,â concedes Hudson, âis that there is an overriding foreign policy decisionâ as to why particular sovereign states âare on the listâ. When it comes to this yearâs determinations, that foreign policy decision appears clear in the cases of Gabon and Niger.
Per Meservey, the US government âis trying to impose some real penalties on coup governmentsâ as âa warningâ to future coup plottersâ. In the case of the others, that foreign policy decision is a bit more difficult to discern.
Eligibility of Mauritania
The case of Mauritania is a good example. Back in 2019, the US government terminated its eligibility status âdue to insufficient efforts to address forced labour, in particular hereditary slaveryâ. Earlier this year, an inter-agency delegation led by the Office of the United States Trade Representative visited the country to conduct a formal assessment of the current state of hereditary slavery. Their findings were mixed.
On the one hand, the delegation concluded that âMauritania has made notable progress to address hereditary slavery, including increasing funding for the anti-slavery courts, limiting the rotation of judges, legalising NGOs, and increasing outreach and engagement with civil society to address slaveryâ.
On the other hand, it determined that there is a clear and present need for âa better understanding of the criminal justice system's ability to investigate and prosecute slavery casesâ.
When this yearâs eligibility determinations were disclosed, Ambassador Katherine Tai suggested that Mauritania has done enough on forced labour to merit the restoration of eligibility for preferential trading access under Agoa. The Ranking Member of the House Ways and Means Committee, Richard Neil, vehemently disagreed. Neil criticised the administrationâs move as âprematureâ and incongruent with âa worker-centric trade agendaâ given that âthe inhumanity in Mauritania continuesâ.
The Congressman was not the only one questioning the merits of the decision.
While the Government of Mauritania âhas passed laws,â Meservey maintains that âit has never made a good faith effort to address the slavery issue.â According to Meservey, the restoration of the eligibility status of Mauritania, therefore, begs important questions about the decision-making process being used by the Biden Administration. This includes whether the decision was really based on the merits or some other consideration.
Ineligibility of Central African Republic
Unlike the resumption of the eligibility status of Mauritania, the termination of the eligibility status of the Central African Republic risks much less opposition. Most regional subject matter experts agree that the Central African Republic does not meet multiple eligibility criteria for preferential trading access under Agoa.
The director for the Centre for African Studies at Howard University, Krista Johnson, observes that the Central African Republic âhas consistently had a very poor track record on human rights and civil liberties for many yearsâ.
Meservey gives a more colourful take when he says that the Central African Republic âis a total basket case ⊠enmeshedâ with the Wagner Group. While there is a recognition that the country falls short of the Agoa requirements, analysts question whether the Central African Republic is really that unique of a case.
Hudson cautions that there is âsort of a race to the bottom with some of these countries.â He points to Cameroon. In the Central African Republic, there was a recent constitutional referendum that removed presidential term limits and undermined democratic governance.
However, Meservey still questions whether the recent ineligibility determination makes âa whole lot of sense.â Even if the Central African Republic is the âAfrican country most under Wagnerâs sway,â Meservey asks, âWhat is different today about Central African Republic from a year ago?â
Meservey suggests that the Central African Republic shows why âclear benchmarks and thresholds for triggering actions matterâ. Otherwise, the annual eligibility reviews create the impression that the âwhole process is ad hocâ.
Ineligibility of Uganda
According to Meservey, the termination of the eligibility status of Uganda is âthe most unfairâ of this yearâs changes. This determination follows on the heels of the recent enactment of an anti-homosexuality act by the Ugandan government. Earlier this year, the White House publicly declared that act to be âa tragic violation of universal human rights.â
Although âUgandaâs human rights record has been persistently in decline for about the past decade,â Johnson shares that there are other Agoa beneficiaries that âhave consistently poor human rights records that are worse than Ugandaâsâ. This includes sovereign states where âthere have not been marked human rights improvementsâ. Examples given include Chad and the Republic of the Congo.
The chairperson of the Africa Program at the Foreign Policy Research Institute, Charles Ray, echoes those concerns. When it comes to the âdeprivation of life and other unlawful or politically motivated killings,â Ray relays that their human rights reports âread essentially the sameâ as those of select Agoa beneficiaries. Examples given include Chad, Democratic Republic of Congo, and the Republic of the Congo.
On the basis of gross violations of human rights, Ray contends that it is âhard to determineâ where the distinction between eligibility and ineligibility has been drawn by the Biden Administration. This, in turn, leads him to ask, âWhy only CAR and Uganda were singled out?â
Meservey goes further. While he acknowledges that the anti-homosexuality laws are a cause for concern, Meservey stresses that âthere are other countries in Africa that have similar bad lawsâ on lesbian, gay, bisexual and transgender (LGBT) rights. In other words, âUganda is not a particular outlierâ. To Meservey, the decision to terminate the eligibility of Uganda, therefore, feels âa bit arbitraryâ. Many African governments are likely to agree with that assessment.
Eligibilities of Ethiopia and South Africa
In the run-up to the forum, there were lots of questions asked about whether Ethiopia and South Africa should be granted preferential trading access under Agoa next year. According to Hudson, there were âmassive lobbying campaigns on both sidesâ. In the end, the restoration of the eligibility status of Ethiopia may have been a bridge too far.
âI think that Ethiopia will get into Agoa before too long,â says Meservey, but âit would be politically very difficultâ to restore the eligibility status of Ethiopia âwhen you are kicking these other countries outâ.
On the flipside, Meservey sees the maintenance of the eligibility status of South Africa as âa strange decisionâ.
To Meservey, âSouth Africa is the case studyâ whenever âyou want to talk about national security implicationsâ of Agoaâ. While âyou might want them in,â Meservey asks âwhy rewardâ the government of South Africa with the hosting rights for the forum?
The Ranking Member of the Senate Foreign Relations Committee, Jim Risch, expressed similar concerns in a recent letter to relevant federal agencies. On the opening day of the forum, Risch reiterated his âstrong concerns regarding the Biden Administrationâs decision to hold the Agoa Forum in Johannesburg, South Africaâ.
He then took it up a notch. He expressed disappointment with âthat South Africa will remain fully eligible for Agoaâs duty-free trade preferences in 2024â on the grounds that âSouth Africaâs continued actions ⊠subvert ... national security and foreign policy interestsâ. Risch wrote, âSouth Africaâs relationship with Russia, and most recently with Iran and Hamas, undermine necessary eligibility safeguards in the Agoa statute.â
Potential for blowback
The approach that the Biden Administration is taking on Agoa could lead to significant blowback for the US government from African governments. According to Hudson, the Biden Administration is using the âthreat of Agoaâ a lot âmore than any other administrationâ.
Although the White House has used sanctions to penalise a number of African states for gross violations of human rights, Hudson believes that the Biden Administration is extremely resistant to âimposing financial sanctionsâ even when âthey are deservingâ.
Instead, Hudson hypothesises that Agoa is emerging as âa new tool to threaten and bludgeon states in Africaâ. Such a weaponisation of Agoa carries significant implications for US-Africa relations.
Meservey warns that the US government needs âto be very, very cautiousâ when it uses Agoa to coerce African governments into alignment with US national security and foreign policy interests: Agoa âis not a scalpel, it is a sledgehammer. There is a lot of collateral damageâ.
Meservey expects that African governments âare going to resentâ how the Biden Administration is making use of Agoa. âThey will see it as bullying,â he says. âThey will notice the arbitrariness of it and the inconsistencies of these decisions.â
While he hopes that this yearâs determinations will lead African governments âto think more deeply,â Meservey is not overly optimistic about the potential for impact: âI donât know what [the termination of Ethiopiaâs eligibility] got us. We didnât stop the war ⊠It didnât do any good.â Expressing fear that this approach to Agoa âopens us up to resentment on the continent,â Meservey demurs, âIâm fundamentally uncomfortable using Agoaâ in this way.
Michael Walsh is a Senior Fellow at the Foreign Policy Research Institute
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