African Rules on Cross-Border Data Flows: The Significance of Regulatory Convergence and the African Continental Free Trade Area’s Digital Trade Protocol’s Potential Contribution
摘要
Data regulation is evolving rapidly across Africa, with national, regional, and international developments shaping the continent’s digital landscape. While many African countries have enacted data protection and cybersecurity laws, regulatory divergence remains a concern, particularly in cross-border data flows (CBDFs). At the continental level, the adoption of the Protocol on Digital Trade (DTP) under the African Continental Free Trade Area (AfCFTA) introduces new CBDF rules, raising questions about the extent to which they contribute to regulatory convergence. Regulatory convergence—the process by which different legal systems independently evolve towards similar standards—can strengthen African countries’ positions in trade negotiations, empower digital firms, particularly African ones, and foster a more level playing field, though potentially at the expense of regulatory autonomy. In this chapter, we examine the current state of regulatory alignment in CBDFs across African countries and assesses the DTP’s potential to enhance convergence. While notable progress has been made, particularly in areas like data protection and cybersecurity, divergence persists in enforcement practices and data localisation mandates. The DTP offers a unique opportunity for African countries to develop a coordinated approach to digital trade and data governance, strengthening their influence in international negotiations. However, its effectiveness will depend on how State Parties interpret and implement its provisions, particularly in balancing legitimate public policy objectives with the principle of free data flow. Rather than advocating for uniformity, we argue for a flexible, evidence-based approach that ensures regulatory alignment while addressing Africa’s diverse policy needs.