The purpose of the EAC Rules of Origin is to implement the provisions of Article 14 of the Customs Union Protocol – setting out criteria for distinguishing between goods produced within the EAC and, therefore, eligible for EAC preferential treatment against those produced outside the EAC customs territory that attract duties specified in the CET (EAC, 2006)70. The EAC Customs Union RoO Rules 2015 are intended to spur intra-EAC trade by being more flexible for the private sector to comply with. However, at present, many NTBs relate to the interpretation of RoO, and challenges have arisen such as the following: Motor Vehicles: Kenya is the largest motor vehicle assembler and importer in the EAC. It imports car parts from outside the EAC and then assembles cars in Kenya, creating jobs and reducing costs. Through such process, cars satisfy the ‘value addition’ criterion for the RoO test and are considered as originating from Kenya. However, there have been instances where Kenya has been unable to export cars assembled on its territory to EAC markets under the preferential treatment principles. An illustrative example, filed on the Tripartite online NTB-reporting system in September 2015, is the one of General Motors. General Motors were charged a duty when exporting four vehicles to Tanzania at the Namanga border post, notwithstanding presenting copies of the EAC Certificate of Origin (CoO), the commercial invoice, the import duty assessment document and the import duty payment note. This NTB has recently been considered resolved, yet there are many instances...

The NTB Act aims to give effect to the second clause under Article 13 of the Customs Union, by establishing a legal mechanism for identifying and monitoring the removal of NTBs. The NTB Act provides as follows: Part I (preliminary provisions) – defines the objective as enhancing and facilitating trade in goods within the EAC through the removal of conditions which affect and distort trade, the creation of an environment which is conducive to trade and effective movement of goods, and the removal of the restrictions which make imports and exports difficult or costly. Part I also adopts the WTO’s categorisation of NTBs as the one applying to EAC Partner States. Part II (prohibition of activities that create NTBs) – requires Partner States to review their trade practices, customs procedures and other measures in place to remove existing NTBs. Part III (National Monitoring Committees and National Focal Points) – determines the establishment by each Partner State of a NMC, consisting of representatives of the Government and the private sector, to support the elimination of NTBs. Part III also determines the establishment by each Partner State of a National Focal Point, consisting of a Ministry, to act as secretariat of the NMC. Part IV (procedure for Elimination of NTBs) – identifies three mechanisms to eliminate NTBs: mutual agreement of Partner States; implementation of the EAC Time Bound Programme for Elimination of NTBs; and regulations, directives or recommendations of the Council of Ministers. There is a dispute resolution process which refers the...