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 “continual progress toward establishing a market-based economy, the rule of law, political pluralism and the right to due process”.

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 “its eligibility for trade benefits under Agoa due to the statutory requirement that beneficiary countries ‘not engage in activities that undermine US security or foreign policy interests”.

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 “always been a bit political”. 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 “can wield it however they want”. In the words of Hudson, the White House “can always make an argument for why a country can be included or excluded”.

In the case of the Biden Administration, Meservey believes that the White House has wielded Agoa in “a haphazard way”. Part of the problem is that there is no core logic being systematically used to determine what potential beneficiaries are eligible.

“The only thing that I can see,” concedes Hudson, “is that there is an overriding foreign policy decision” as to why particular sovereign states “are on the list”. When it comes to this year’s determinations, that foreign policy decision appears clear in the cases of Gabon and Niger.

Per Meservey, the US government “is trying to impose some real penalties on coup governments” as “a warning” to future coup plotters”. 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 “due to insufficient efforts to address forced labour, in particular hereditary slavery”. 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 “Mauritania 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 slavery”.

On the other hand, it determined that there is a clear and present need for “a better understanding of the criminal justice system's ability to investigate and prosecute slavery cases”.

When this year’s 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 administration’s move as “premature” and incongruent with “a worker-centric trade agenda” given that “the inhumanity in Mauritania continues”.

The Congressman was not the only one questioning the merits of the decision.

While the Government of Mauritania “has passed laws,” Meservey maintains that “it has never made a good faith effort to address the slavery issue.” 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 “has consistently had a very poor track record on human rights and civil liberties for many years”.

Meservey gives a more colourful take when he says that the Central African Republic “is a total basket case … enmeshed” 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 “sort of a race to the bottom with some of these countries.” 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 “a whole lot of sense.” Even if the Central African Republic is the “African country most under Wagner’s sway,” Meservey asks, “What is different today about Central African Republic from a year ago?”

Meservey suggests that the Central African Republic shows why “clear benchmarks and thresholds for triggering actions matter”. Otherwise, the annual eligibility reviews create the impression that the “whole process is ad hoc”.

Ineligibility of Uganda

According to Meservey, the termination of the eligibility status of Uganda is “the most unfair” of this year’s 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 “a tragic violation of universal human rights.”

Although “Uganda’s human rights record has been persistently in decline for about the past decade,” Johnson shares that there are other Agoa beneficiaries that “have consistently poor human rights records that are worse than Uganda’s”. This includes sovereign states where “there have not been marked human rights improvements”. 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 “deprivation of life and other unlawful or politically motivated killings,” Ray relays that their human rights reports “read essentially the same” 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 “hard to determine” where the distinction between eligibility and ineligibility has been drawn by the Biden Administration. This, in turn, leads him to ask, “Why only CAR and Uganda were singled out?”

Meservey goes further. While he acknowledges that the anti-homosexuality laws are a cause for concern, Meservey stresses that “there are other countries in Africa that have similar bad laws” on lesbian, gay, bisexual and transgender (LGBT) rights. In other words, “Uganda is not a particular outlier”. To Meservey, the decision to terminate the eligibility of Uganda, therefore, feels “a bit arbitrary”. 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 “massive lobbying campaigns on both sides”. In the end, the restoration of the eligibility status of Ethiopia may have been a bridge too far.

“I think that Ethiopia will get into Agoa before too long,” says Meservey, but “it would be politically very difficult” to restore the eligibility status of Ethiopia “when you are kicking these other countries out”.

On the flipside, Meservey sees the maintenance of the eligibility status of South Africa as “a strange decision”.

To Meservey, “South Africa is the case study” whenever “you want to talk about national security implications” of Agoa”. While “you might want them in,” Meservey asks “why reward” 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 “strong concerns regarding the Biden Administration’s decision to hold the Agoa Forum in Johannesburg, South Africa”.

He then took it up a notch. He expressed disappointment with “that South Africa will remain fully eligible for Agoa’s duty-free trade preferences in 2024” on the grounds that “South Africa’s continued actions … subvert ... national security and foreign policy interests”. Risch wrote, “South Africa’s relationship with Russia, and most recently with Iran and Hamas, undermine necessary eligibility safeguards in the Agoa statute.”

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 “threat of Agoa” a lot “more than any other administration”.

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 “imposing financial sanctions” even when “they are deserving”.

Instead, Hudson hypothesises that Agoa is emerging as “a new tool to threaten and bludgeon states in Africa”. Such a weaponisation of Agoa carries significant implications for US-Africa relations.

Meservey warns that the US government needs “to be very, very cautious” when it uses Agoa to coerce African governments into alignment with US national security and foreign policy interests: Agoa “is not a scalpel, it is a sledgehammer. There is a lot of collateral damage”.

Meservey expects that African governments “are going to resent” how the Biden Administration is making use of Agoa. “They will see it as bullying,” he says. “They will notice the arbitrariness of it and the inconsistencies of these decisions.”

While he hopes that this year’s determinations will lead African governments “to think more deeply,” Meservey is not overly optimistic about the potential for impact: “I don’t know what [the termination of Ethiopia’s eligibility] got us. We didn’t stop the war … It didn’t do any good.” Expressing fear that this approach to Agoa “opens us up to resentment on the continent,” Meservey demurs, “I’m fundamentally uncomfortable using Agoa” in this way.

Michael Walsh is a Senior Fellow at the Foreign Policy Research Institute

BUSINESS REPORT