African Union Law

1. The Assembly of African Union

The Assembly is the ‘supreme organ of the African Union’ composed of Heads of States and Governments.  It meets once in a year in ordinary session, and it can meet in extraordinary session at the request of any member state that has to be approved by a two-third majority of the member states. The Assembly shall be chaired by a Head of State or Government from among the member states who is elected based on consultations among the member states. The chairman shall remain in the position for a period of one year.

 

A.Powers and Functions of the Assembly

 

As regards to the powers and functions of the Assembly, Article 9 of the Constitutive Act of the African Union lists down the mandates that the Assembly has by virtue of the agreements of the member states as expressed in the Constitutive Act, which is a manifestation of their common volition.

 

Article 9

Powers and Functions of the Assembly

1.The functions of the Assembly shall be to:

  1. a.determine the common policies of the Union;
  2. b.receive, consider and take decisions on reports and recommendations from other organs of the Union;
  3. c.consider requests for membership to the Union;
  4. d.establish any organ of the Union;
  5. e.monitorimplementation  of policies and decisions of the of the Union as well ensure compliance by all member states;
  6. f.Adopt the budget of the Union;
  7. g.give directives to the Executive Council onmanagement of conflicts, war and other emergency situations and the restoration of peace;
  8. h.Appoint and terminate the appointment of judges of the Court of Justice;
  9. i.Appoint the Chairman of the Commission and his or her deputy or deputies and Commissioners of the Commission and determine their functions and terms of office.
    1. 2.The Assembly may delegate any of its powers and functions to any organ of the Union.

Being the supreme organ of the Union, the Assembly has a final say over important matters mentioned above. It has a multifaceted character mandates. It could be said that most of them display the supreme character of the Assembly. The Assembly of the Union may be equated to the General Assembly of the United Nations. It has the ultimate power in determining the destiny of the organization itself.

As a high ranking organ of the Union, the Assembly’s powers and functions are the manifestations of the fact that the Union is a forum of cooperation among between African states that is to be guided by the common understanding of the Heads of States and Governments of its member states. The destiny of the organization is to be determined by the decisions that the Assembly makes.  The powers and functions it has; may, though obliquely, be equated to the mandates of the legislative organ in a domestic set up.

It has to be recalled that the Assembly is not a grouping of experts that could be indulged in specific operational matters of the Union. Rather, it sets the boundary of the Union’s functioning and authorizes those who have professional expertise in the area. It is for this reason that the Executive Council is answerable to the Assembly. The Executive Council supervises the functioning of the Specialized Technical Committees, and accordingly monitors the policy guidelines adopted by the Assembly.

It may be said that most of the functions of the Assembly are self-explanatory. To exemplify one of its power and functions, the Assembly is mandated to establish any organ of the Union. It is a bare fact that Article 5(1) of the Constitutive Act of the Union has already listed down organs of the Union. However, the framers of the Act cannot foresee the future in its full-fledged manner and determine an exhaustive and all-embracing list of organs that can remain forever. The order of the day may demand the abolition of one organ and the creation of another. In connection with this, the Trusteeship Council of the United Nations might be taken as an appropriate example. The mandates of this Council may be said to be outdated by now. That is why there are scholarly recommendations to establish a council on terrorism in this place.

The framers of the African Union Constitutive Act were capable of paying due attention to the aforementioned scenario. That is way Article 5(2) of the Act provides on open-ended statement. The organs of the Union, as listed in Article 5(1), are not exhaustive. If it deems necessary, the Assembly may decide to establish other organs of the Union. In the same fashion, Article 9(1) names the power to establish any organ of the Union as one of the functions of the Assembly. An appropriate example in this regard would be the decision of the Assembly to establish the Peace and Security Council of the African Union. This organ was not part of the organs of the Union as stipulated in the Constitutive Act. However, the order of the day and the emerging consensus among African states demanded its creation.  Hence, the Assembly heralds the creation of the Peace and Security Council as an independent organ of the African Union.

The mandates of the Assembly to establish a new organ of the Union is specified in black and white manner. At this juncture, let’s pose a question whether the Assembly can disestablish any of the organs of the Union as enumerated in the Constitutive Act. A contrary reading of Article 9(1) (d) might bring an affirmative response to the issue at hand. If the Assembly is mandated to create a new organ, what can propel it from abolishing an existing one? However, for practical reasons, it doesn’t seem realistic for the Assembly to do so. It may rather substitute an existing organ with another only in so far as it can further the objectives of the Union in a simplified manner. A notable example in this regard would be the Assembly’s decision to merge the Court of Justice of the African Union [which is an organ of the African Union as per the Constitutive Act] with the African Court of Human and Peoples’ Rights and create a new organ of the Union named the African Court of Justice and Human Rights. Generally, it may be concluded that, as an ultimate decision making organ of the Union, the Assembly may do so when it deems necessary. However, most organs of the African Union look like to have an indispensable character for the Union to pursue its objectives. Therefore, one may not reasonably expect a total abolition of any of the specified organs. Rather, it would be reasonable to expect a measure of reorganization when the circumstances of the case demand it.     

 

  1. B.The Mode of Operation of the

  

Concerning the decision making process within the Assembly of the Union, the Constitutive Act authorizes the Assembly to adopt its own detailed Rules of Procedure. Accordingly, the Assembly has adopted its own Rules of Procedure as of July, 2002. A detailed explanation of the contents of the same might be a verbose attempt as most of the provisions of the Rules of Procedure are either reiteration of what has been provided in the Constitutive Act or too detail and routine to be discussed separately. Therefore this material focused on highlighting the major tenets of the said instrument. Students are hereby required to make personal readings of the instrument to have a full-fledged understanding of it.

The Assembly shall conduct its session at least once in a year on an ordinary basis. It may also conduct an extraordinary session provided that a member state or the Chairperson of the Union requested so and the request is approved by a two-third majority of the member states. Unless a member state requests to host the sessions of the Assembly, it shall be held at the headquarters of the Union, Addis Ababa, Ethiopia. But in any case, the Assembly is bound to make a session in Addis Ababa at least every other year.

A state that pledges to host the meetings of the Assembly shall be duty bound to bear all extra-expenses incurred by the Commission due to the change of Venue.  Apart from that, the said state shall comply with adequate logistical facilities and a favorable political atmosphere. In cases where two or more member states offer to host a session, the Assembly shall decide on the venue by simple majority. In any meeting of the Assembly, two-thirds of the total membership of the Union shall constitute a forum.

Rule 8 of the Rules of Procedure of the Assembly provides the following with regard to how agenda of Ordinary Sessions of the Assembly are going to be singled out:

  1. 1.The Assembly shall adopt its Agenda at the opening of each session.
  2. 2.The Provisional Agenda of an ordinary session shall be drawn by the Executive Council and shall comprise the following:
  3. a.Items which the Assembly decides to place on its agenda;
  4. b.Itemsby Executive Council;
  5. c.Items proposed by the other organs of the Union that do not report directly to the Executive Council;
  6. d.Items proposed by a Member State Provided that the proposal issixty (60) days before the opening of the session and the supporting document(s) and draft decision(s) has been communicated to the Chairperson of the Commission at least thirty (30) days before the opening of meeting.
  7. 3.The provisional Agenda shall be divided into two parts as follows:

 

Part A: Items for adoption without discussion are those on which the Executive Council has reached agreement and for which their approval by the Assembly is possible without discussion;

Part B: Items for discussion are those on which agreement has not been reached by the Executive Council, requiring debate before approval by the Assembly.

 

It is as well possible for a Member State to raise other agenda items, which shall only be for information but not subject to debate or decision. As regards to the agenda of extra ordinary sessions, it shall comprise only the item(s) submitted for consideration an the request for convening the session

Concerning the manner of conducing the sessions, unless the Assembly decides other wise by simple majority, all sessions of the Assembly shall be closed. Arabic, English, French, Portuguese, Spanish, Kiswahili and any other African language shall be the working languages of the Assembly.

With respect to the decision making process of the Assembly, Rules 18-35 of its Rules of Procedure govern the details. Not all member states of the Assembly may always have a voting right on the decisions of the Assembly. A member state may be sanctioned not to exercise its voting rights as per Article 23(1) of the Constitutive Act due to its failure to make the appropriate payment of its contribution to the budget of the Union. A state may as well be suspended due to an unconstitutional change of government. Except in the cases of these exceptional circumstances, each member state shall have one (1) vote.

Under normal circumstances, the Assembly is expected to take its decisions by consensus. In cases where unanimity is not possible, the Assembly shall take questions of procedure by a simple majority and other decisions by a two-thirds majority of the member states eligible to vote. Sometimes it may be debatable as to whether a certain question is a question of procedure or not. In such cases, the Assembly shall decide on it by a simple majority. While voting on procedural matters, states may follow any method as may be determined by the Assembly whereas on substantive issues voting shall be made by secret ballot. 

While deliberating on issues of discussion, a member state may raise a point of order over which the Chairperson shall immediately decide. While raising a point of order, no one can speak on the substance of the issue being discussed. If the member state that raised the point of order is aggrieved by the decision of the Chairperson, the Assembly shall decide on the matter by a simple majority.

The Assembly may take its decisions in three different forms. The first form of decision is that of Regulations which are meant to be applicable and binding on member states, organs of the Union and the Regional Economic Communities. These entities are under obligation to take all the necessary measures to implement the Assembly’s Regulations.

Another form which the decision of the Assembly may take is Directives. Similar to that of Regulations, the Directives of the Assembly are binding on the three different categories of entities mentioned above.   What makes them distinct from Regulations is that they give discretionary power for national authorities so as to determine the form and the means used for the implementation of the same depending on their peculiar surroundings.

Recommendations, declarations, resolutions, and opinions, etc are another category of the forms of the decisions of the Assembly. These kinds of decisions are not binding. They are basically targeted at guiding and harmonizing the viewpoints of the member states.

Whatever forms a decision of the Assembly may take; it will be authenticated by the signature of the Chairperson of the Assembly and the Chairperson of the Commission. Next to that, they have to be published in all the working languages of the Union in the ‘Official Journal of the African Union’ within fifteen days after the signature and shall be transmitted to member states, other organs of the Union and the Regional Economic Communities. Unless the decision of the Assembly ordains otherwise, Regulations and Directives shall be automatically enforceable with in thirty (30) days after the date of the publication in the Official Journal of the African Union.

The Assembly is mandated to sanction a member state that fails, without good and reasonable cause, to comply with the binding decisions and policies of the Union. In such instances, the Assembly shall stipulate the timeframe for compliance with the decision. Should a state fail to observe the stipulated timeframes, the Assembly may impose sanctions in accordance with Article 23(2) of the Constitutive Act of the African Union. The sanctions to be imposed may include denial of transportation and communication links with other member states and other measures of political and economic nature to be determined by the Assembly.

Condemnation and rejection of unconstitutional changes of governments is one of the sixteen cardinal principles of the African Union. In pursuance of this principle, Article 30 of the Constitute Act provides that governments which shall come to power via unconstitutional means shall be suspended from participating in the activities of the Union.

Condemnation of unconstitutional change of government by the Union is a decision of paramount importance in Africa where such things are not uncommon. The procedure to be followed in such instances is stipulated in Rule 37 of the Rules of Procedure of the Assembly. The rule contains six procedures to be followed in order to impose sanctions for the said cases. Below is the text of Rule 37:

Rule 37

Sanction for Unconstitutional Changes of Government

  1. 1.Pursuant to Article 30 of the Constitutive Act, the member states in which Governments accede to power by unconstitutional means shall be suspended and shall not participate in the activities of the Union.
  2. 2.in conformity with the Declaration on the Framework for an OAU ResponseUnconstitutional Changes of Government, the situations to be considered as unconstitutional change shall be, among others:
  3. a.Military and other coup d’against a democratically elected government;
  4. b.Intervention by mercenaries to replace a democratically elected government;
  5. c.Replacement of democratically elected governments by armed dissident groups and rebel movements; and
  6. d.Refusal by an incumbent government to relinquish power to the winning party after a free and fair election.a.immediately, on behalf of the Union, condemn such a change and urge the speedy return to constitutional order;
    1. 3.The overthrow and replacement of a democratically elected government by elements assisted by mercenaries shall also be considered as an unconstitutional change of government.
    2. 4.whenever an unconstitutional change oftakes place, the Chairperson of the Assembly and the Chairperson of the Commission shall;
  7. b.Convey a clear and unequivocal warning that such an illegal change shall not be tolerated or recognized by the Union.
  8. c.Ensure consistency of action at the bilateral, interstate, sub-regional and international levels;
  9. d.Request the PSC (Peace and Security Council of the African Union) to convene in order to discuss the matter;
  10. e.Immediately suspend the member state from the Union and from participating in the organs of the Union, provided that exclusion from participating in the organs of the Union shall not affect the state’s membership of the Union and its obligations towards the Union.a.Visa denials for the perpetrators of the unconstitutional change;
    1. 5.The Assembly shall immediately apply sanctions against the regime that refuses to restore constitutional order, including but not limited to:
  11. b.Restriction of government to government contacts;
  12. c.Trade restrictions;
  13. d.The sanctions provided for in Article 23(2) of the Constitutive Act and in these Rules;
  14. e.Any additional sanction as may be recommended by the PSC (Peace and Security Council).

The Chairperson of the Commission in consultation with the Chairperson of the Assembly shall;

 

 

2. The Executive Council

 

A. Its Composition and Functions 

 

The Executive Council, responsible to the Assembly, is composed of Ministers of Foreign Affairs who meet twice a year in ordinary session. Member states may designate other ministers or authorities in place of the ministers of the foreign affairs. 

The Executive Council is established with a broad mandate. That states. ‘It has the mandate to coordinate and take decisions on policies in areas of common interest to the member states, and to consider issues referred to it by the Assembly.’

Article 13 of the Constitutive Act provides a list of functions of the Executive Council in the following manner:

 

Article 13

Functions of the Executive Council

  1. 1.The Executive Council shall coordinate and take decisions on polices in areas of common interest to the member states, including the following:
  2. a.Foreign trade;
  3. b.Energy, industry and mineral resources;
  4. c.Food, agricultural and animal resources, livestock production and forestry;
  5. d.Water resources and irrigation;
  6. e.Environmental protection, humanitarian action and disaster response and relief;
  7. f.Transport and communications;
  8. g.Insurance;
  9. h.Education, culture, health and human resources development;
  10. i.Science and technology;
  11. j.Nationality, residency and immigration matters;
  12. k.Social security, including the formulation of mother and child care policies, as well as policies relating to the disabled and the handicapped;
  13. l.Establishment of a system of African awards, medals and prizes.
    1. 2.The Executive Council shall be responsible to the Assembly. It shall consider issues referred to it and monitor the implementation of policies formulated by the Assembly.
    2. 3.The Executive Council may delegate any of its powers and functions mentioned in paragraph 1 of this Article to the Specialized Technical Committees established under Article 14 of this Act.

As it can be deduced from a simple reading of the long list of functions the Executive Council of the African Union is a vital organ of the Union. Like the case of the Assembly of the Union, the Executive Council is a collection of political authorities of a given state. Though these personalities may have the political determination in furtherance of the above stated functions, they may lack expertise in fields of focus specified in Articles 13(1) of the Constitutive Act which is the rationale to authorize the Council to designate any of its functions to the Specialized Technical Committees who are composed of individuals with a comparatively better expertise in the fields.

B. The Mode of Operation of the Executive Council

 

As it has been mandated by Article 12 of the Constitutive Act, the Executive Council has already adopted its Rules of Procedure, which comprise a total of forty-three (43) Rules. In a similar fashion with that of the Assembly, the Rules of Procedure of the Executive Council are too detail and in some cases a reiteration of the provisions of the Constitutive Act. Therefore, this material provides only a general description of the modus operandi of the Executive Council. In many instances such as venue, the required forum, methods of voting, categorization of decisions in to three forms, voting rights, majority required in decision making procedures and the elite, the Rules of Procedure of the Executive Council are exactly the same as that of the Assembly. Therefore, it would not be wise to deal with such matters again.

Like that of the Assembly, the Executive Council has both ordinary and extraordinary sessions. Unless the contrary is specified by the Commission in, consultation with the Chairperson and member states, the Council shall conduct its ordinary sessions twice a year in February and July. For an extraordinary session to be held, a request by the Chairperson of the Executive Council or any member state or the Chairperson of the Commission in consultation with the Chairperson of the Assembly has to be approved by a two-thirds majority of the member states.

Concerning the procedure of adopting agenda of ordinary sessions of the Executive Council, Rule 9 states the following:

Rule 9

Agenda of Ordinary Sessions

 

  1. 1.The Executive Council shall adopt its agenda at the opening of each session.
  2. 2.The provisional agenda of an ordinary session shall be drawn up by the PRC (Permanent Representatives’ Committee). The Chairperson of the Commission shall communicate it to member states at least thirty (30) days before the opening of the session. The agenda may comprise the following:
  3. a.The Report of the commission;
  4. b.The report of the PRC;
  5. c.Items which the Assembly has referred to the Executive Council;
  6. d.Items which the Executive Council decided at a preceding session to place on its agenda;
  7. e.The draft program and Budget of the Union;
  8. f.Items proposed by other organs of the Union;
  9. g.Items proposed by a member state provided that the proposal is submitted sixty (60) days before the opening of the session and the supporting document(s) and draft decision(s) have been communicated to the Chairperson of the Commission at least thirty (30) days before the opening of the session;
  10. h.Any other business which shall be for information purposes only and shall not be subject to debate or decision.
    1. 3.The provisional agendabe divided into two parts as follows;

 

Part A: Items for adoption without discussions are those on which the PRC has reached agreement and for which approval by the Executive Council is possible without discussion.

 

Part B: Items for discussion are those on which agreement has not been reached by the PRC, requiring debate before approval by the Executive Council.

In extraordinary sessions, the agenda shall comprise only the item(s) submitted for consideration in the request for convening the session. The rationale for such an endorsement can speak for itself. It is intended to let delegates of the member sates not to be confronted with an issue which they have not prepared themselves.

3. The Commission

 

The Commission is the Secretariat of the African Union, and as such, has numerous functions. The Statute of the Commission of the African Union enumerates a list of functions that the Commission is mandated for. These include representing the African Union and defending its interests, implementing decisions taken by other organs of the African Union, promoting integration and socio-economic development, ensuring the promotion of peace, democracy, security and stability, and ensuring the mainstreaming of gender in all programs and activities of the African Union.

The Commission is composed of a Chairperson, a Deputy Chairperson, and the eight Commissioners. The Chairperson and the eight Commissioners, act as international officials responsible only to the Union as specified in Article 4(1) of the Statute of the Commission of the African Union. The eight Commissioners are elected to be responsible for a particular portfolio. The portfolios are peace and security, political affairs, infrastructure and energy, social affairs, human resources, science and technology, trade and industry, rural economy and agriculture, and economic Affairs. 

In general, the Commission of the African Union, as indicated in Article 20 of the Constitutive Act, is a standing organ of the African Union that runs the organization’s day-to-day business.

4. The Pan African Parliament

 

The Pan-African Parliament is one of the organs of the African Union as envisaged in Article 5(1) (c) of the Constitutive Act. The Pan-African Parliament was formally inaugurated in 2004. The notion of having it was, however, first outlined in the 1991 Abuja Treaty Establishing African Economic Community. The Treaty envisaged the Pan African Parliament as one of its organs and left the details for a protocol relating thereto which was signed in 2002.

The Pan-African Parliament was meant to provide a vehicle through which African citizens can contribute towards deliberating and providing advice on how to deepen democratic governance and promote development. Article 2 of the protocol in relation to the Pan African Parliament provides the following:

                                               

Article 2

Establishment of the Pan-African Parliament

  1. 1.Member states hereby establish a Pan-African Parliament the composition, functions, powers and organization of which shall be governed by the present protocol.
  2. 2.The Pan-African parliamentarians shall represent all the peoples of Africa.
  3. 3.The ultimate aim of the Pan-African Parliament shall be to evolve into an institution with full legislative powers, whose members are elected by universal adult suffrage. However, until such time as the member sates decide otherwise by an amendment to this protocol:
  4. i.The Pan-African Parliament shall have consultative and advisory powers only; and
  5. ii.The members of the Pan-African Parliament shall be appointed as provided for in Article 4 of this protocol.

 

As stated above, the Pan-African Parliament has not yet assumed full legislative powers. The parliament is expected to become more effective after 2010 when it was expected to become an elected body and assumed full legislative powers.

The Pan-African Parliament is mandated to exercise oversight on issues of governance and development on the continent. It can discuss or express an opinion on any matter, either on its own initiative or at the request of the African Union Assembly. It can also make recommendations on how to achieve the objectives of the African Union and strives to contribute to the coordination and harmonization of policies, programs and activities of the Regional Economic Communities and African’s national parliaments.

As regards to its composition, the Pan-African Parliament shall be composed of parliamentarians of member states. Each member state shall be represented in the Pan- African Parliament by five members, of whom, at least, one must be a woman. As the protocol stands now, the Pan-African parliamentarians shall be elected or designated by the respective National Parliaments or any other deliberative organs of the member states from among their members. The term of office of an individual parliamentarian depends on his/her term of office in the national parliament or other deliberative organ to which he/she is a member.

5. The Court of Justice

 

As per Articles 5(1) and 18 of the Constitutive Act, the Court of Justice of the African Union was established as a principal judicial organ of the Union. However, thereafter, the Assembly of the Union passed a decision urging the merger of the Court of Justice with the African Court on Human and Peoples’ Rights. The many area of focus of material is not on the African Court on Human and Peoples’ Rights. Nevertheless, the merger of the two judicial organs would have to be addressed here as the destiny of the Court of Justice is going to be shaped accordingly. For a proper and logical understanding of the issue under consideration, we first have to a look at the primarily intended structure of the Court of Justice of the African Union. Then we explain the decision to merge the two judicial bodies along with the rationale behind such endorsement. Finally, we look at the proposed modus operandi of the merged court.

A. Salient Features of the Court of Justice

 

The Court of Justice was, as stated above, set up as the principal judicial organ of the African Union. Thus, it could be said that it was meant to be a body that could offer judicial assistance for the functioning of the Union as part of international institutional law. It was with this objective in view that the protocol to the Court of Justice of the African Union was framed.

Article 18 of the said protocol listed entities that deemed to be eligible to submit cases to the Court. The entities enumerated were States parties to the protocol, the Assembly of the African Union, the Parliament and other organs of the Union authorized by the Assembly, the African Union Commission or a member of staff of the Commission in a dispute between them within the limits and under the conditions laid down in the Staff Rules and Regulations of the Union, and in accordance with conditions to be determined by the Assembly and provided that state party concerned is consented to the application made by the third party.

As a judicial organ of the African Union, the Court of Justice was meant to have jurisdiction over the following matters as stipulated in Article 19 of the protocol relating thereto. The jurisdictions of the Court shall include the interpretation, application or validity of Union treaties and all subsidiary legal instruments adopted within the framework of the Union, any question of international law, all acts, decisions, regulations and directives of the organs of the Union, all matters specifically provided for in any other agreements that states parties may conclude among themselves or with the Union and which confer jurisdiction on the Court, the existence of any fact which, if established, would constitute a breach of an international obligation owed to a state party to the Union and finally the nature or extent of the reparation to be made for the breach of an obligation.

B. The Decision to Merge the African Court on Human and Peoples’ Rights and the Court of Justice

      

The African Court on Human and Peoples’ Rights predates the Court of Justice in its establishment. But it is usually alleged that even from the outset of the drafting of the protocol establishing the African Court on Human and Peoples’ Rights, there was some debate about the possibility of amalgamating it with the Court of Justice into a single institution. In the second ordinary session of the African Union, which was held in Maputo, Mozambique, in July, 2003, the African Union decided to merge the two through the adoption of an instrument fusing both courts i.e. the draft merger instrument. At the request of the African Union, Algeria’s Foreign Minister and former president of the World Court in Hague, Mohammed Bedjaoui, prepared a draft merger Treaty in November 2005.

The following are among the reasons put forward to justify the merger of the two courts. The official explanation for such a merger was that it would be financially expedient to do so. Instead of having two courts with different budgets; it was opted for a single court. Another argument for an amalgamated court was the apparent competence of both courts to adjudicate human rights mattes. This led to the creation of a new merged court named the African Court of Justice and Human Rights. 

The preamble of the Statute of the African Court of Justice of Human Rights provides the following as one among the statement of reasons mentioned in it. It was stated that “[we are] firmly convinced that the establishment of the African Court of Justice and Human Rights shall assist in the achievement of the goals pursued by the African Union and that the attainment of the objectives of the African Charter on Human and Peoples’ Rights requires the establishment of a judicial organ to supplement and strengthen the mission of the African Commission on Human Peoples’ Rights as well as the African Committee of Experts on the Rights and Welfare of the Child.

C. The Proposed Mode of Operation of the Merged Court

 

The modus operandi of the merged court might be highlighted by focusing on four principal centers of attention:

  • Sections of the Court

The Court shall have two sections. The first section is the General Affairs Section, which has eight judges and is competent to hear all cases which were the jurisdiction of the former Court of Justice for Human and Peoples’ Rights issues, which shall be handled by the second section of the court named as the Human Rights Section.

Though the Court has two sections with their own mandate, any section may refer a case to be considered by the full court whenever it is convinced that it is necessary to do so. It may be said that this kind of proposal is likely to occur in some grey areas, which are not easy to determine whether they are human rights issues, or not and in cases where in the mandates of the General Affairs Section might commingle with human rights issues.

  • Required Quorum

A quorum of nine and five judges shall respectively be required for deliberations of the full court and for deliberations of each section.

 

  • Jurisdiction of the Court

The court shall have jurisdiction over the previous jurisdictions of the two Courts before their merger. The jurisdiction of the former Court of Justice is already stated in 3.5.1 of this material. As regards to, the African Court of Human and Peoples’ Rights, the protocol for its establishment extends its jurisdiction to all cases and disputes concerning the interpretation and application of the Charter (ACHPR) and any other relevant human right instrument ratified by the states concerned. It was also meant to have an advisory jurisdiction to any recognized African organization. In the same fashion, the merged court may as well have advisory jurisdiction on any legal question to organs of the Union.

  • Entities Eligible to Submit Cases to the Court

Under the proposed merged court, locus stand has been broadened to include individuals and relevant human rights organizations accredited to the African Union or any of its organs. Accordingly, the old requirement of an additional declaration to allow individual and NGO petitions has been dispensed with, and the majority of the victims can approach the Court directly. This modification was cited in Chapter two, of this material, as a feature that shows African Union’s trend to adopt some supranational characters as an international organization.

 

6. The Permanent Representatives’ Committees

 

The Permanent Representatives’ Committee is an organ that is composed of permanent representatives accredited to the Union and other duly accredited Plenipotentiaries of member states. A member state shall be represented in the Permanent Representatives’ Committee by a permanent representative who is a resident in the specified place, may designate another country from its region to represent it.

The Permanent Representatives’ Committee shall be mandated to multifaceted tasks of which most of them are subservient to the functions of the Executive Council. Rule 4 of the Rules of Procedure of the Permanent Representatives’ Committee lists down the powers and functions of the Committee.

Rule 4

Powers and Functions

1. The Permanent Representatives’ Committee shall inter-alia:

a. Act as an advisory body to the Executive Council;

b. Prepare the meetings of the Executive Council, including the Executive Council;

c. Prepare the meetings of the Executive Council, including the agenda and draft     decisions;

d. Make recommendations on areas of common interest to member states particularly on issues on the agenda of the Executive Council;

e. Facilitate communication between the Commission and the Capitals of member states;

f. Consider the program and Budget of the Union as well as administrative, budgetary and financial matters of the Commission and make recommendations to the Executive Council;

g. Consider the financial report of the Commission and make recommendations to the Executive Council;

h. Consider the report of the Board of External Auditors and submit written comments to the Executive Council;

i. Monitor the implementation of the budget of the Union;

j. Propose the composition of the Bureaus of the organs of the Union ad-hoc committees, and sub-committees;

k. Consider matters relating to the programs and projects of the Union particularly issues relating to the socio-economic development and integration of the continent and make recommendations thereon to the Executive Council.

l. Monitor the implementation of the policies, decisions and agreements adopted by the Executive Council,

m. Participate in the preparation of the program of Activities of the Union;

n. Participate in the preparations of the calendar of the meetings of the Union;

o. Consider any matter assigned to it by the Executive Council;

p. carries out any other functions that may be assigned to it by the Executive Council.

 

2. The Permanent Representatives’ Committee may set up such ad-hoc committees and temporary working groups, as it deems necessary, including a sub-committee on Headquarters and Host Agreement, NEPAD and the Cairo Plan of Action of the Africa/Europe Summit.

The above list of the power and functions of the Permanent Representatives’ Committee can speak for itself and there seem no need to make elaborate them. As regards to its mode of operation, the Committee’s Rules of Procedure provide with a very similar, if not completely identical, rules with that of the Executive Council. The notable difference between the two is a difference in terminologies owing to the different names that the two organs of the Union have. Therefore, the material will not dare to make a verbose attempt to go to the details of the Rules of Procedure of the Permanent Representatives’ Committee.

7. The Specialized Technical Committees

 

It was stated above that the Executive Council of the African Union is mandated to coordinate and take decisions on policies in areas of common interest to the member states. These areas of common interest are of multifaceted character. The Executive Council is, however, not a body that comprises with experts in the fields to which it is mandated. This establishes a prima-facie case to suggest on the indispensable organ, composed of experts that can assist the Executive Council in pursuing its agenda.

It was mainly due to the above stated rationale that Article 14 of the Constitutive Act of the African Union legally established the Specialized Technical Committees as an organ of the African Union. As justified by its rationale, the Specialized Technical committees were made responsible to the Executive Council of the African Union. The constitutive Act established seven Specialized Technical committees. These are:

  1. i.The Committee on Rural Economy and Agricultural Matters;

ii.The Committee on Monetary and Financial Affairs;

  1. iii.The Committee on Trade, Customs and Immigration Matters;
  2. iv.The Committee on Industry, Science and Technology, Energy, Natural Resources and Environment;

v. The Committee on Transport, Communications and Tourism;

  1. vi.The Committee on Health, Labor and Social Affairs; and
  2. vii.The Committee on Education, Culture and Human Resources.

The above mentioned committees shall be composed of delegates who have the responsibility to sectors falling within their respective areas of competence. The Assembly of the African Union is mandated to restructure the seven committees or to establish other specialized committees, as it deems necessary.

Article 15 of the Constitutive Act provides the functions of the seven specialized technical committees. The functions are put in such a generic form that they do not specifically refer to any of the committees on a specified basis. Rather, it provides a guideline of what each Specialized Technical Committees shall focus on.   

8. The Economic, Social and Cultural Council  

 

The Economic, Social and Cultural Council (ECOSOCC) of the African Union was established under Article 22 of the Constitutive Act of the African Union as a vehicle for building a strong partnership between governments and all segments of the African civil society.

The Statue of the ECOSOCC, adopted by the Heads of State and Government at the third Ordinary Session of the Assembly in 2004 defines it as an advisory organ of the African Union composed of different African social groups, professional groups, non-governmental organizations, and cultural organizations. ECOSOCC’s structure includes a General Assembly, a Standing Committee, Sectoral Cluster Communities and a Credentials Committee.

The following are the major functions to which the ECOSOCC is mandated to:

-      promoting dialogue between all segments of African people on issues concerning the continent and its future;

-      Forging strong partnerships between governments and all segments of civil society, in particular, women, the youth, children, the Diaspora, organized labor, the private sector and professional groups;

-      Promoting the participation of African Civil Society is the implementation of the policies and programs of the Union;

-      Supporting policies and programs that promote peace, security and stability and foster constant development and integration; 

-      Promoting and defending a culture of good governance, democratic principles and institutions, popular participation, human rights  and social justice;

-      Promoting, advocating and defending gender equality; and

-      Promoting and strengthening the institutional, human and operational capacities of the African civil society.

9. The Peace and Security Council

 

A. Background

 

Establishment of a common defense policy for the African continent is one of the sixteen cardinal principles of the African Union. While explaining the historical roots of the Peace and Security Council, Timothy stated that the founders of the African Union deliberately endowed it with more interventionist power than the OAU which was criticized as having been a toothless talking shop where a club of presidents and prime ministers informally embraced a policy of non-intervention in the internal affairs of their member states. The misdeeds of the past have to take the blame for the untold miseries of the Africans in different parts of the continent including Rwanda, Sierra Leone, Democratic Republic Congo and the Sudan. Africa can be expected to have a bright future only in so far as there exist a scheme whereby the members of the African Union can function as, to use Thabo Mbeki’s words, their brothers’ keeper. This can be realized with a Peace and Security Council of the African Union.

Despite all the above pressing demands for the need to have a Peace and Security Council of the African Union, the Constitutive Act of the Union did not mention it as one of the principal organs of the African Union. The Constitute Act was, however, open enough to let the Assembly establish any other organ of the union which it deems necessary.

Accordingly, the African Union established its Peace and Security Council on 26 December 2003 when the protocol relating to the Council was entered into force. This was a remarkable step taken by the Union so as to act according to its principles of establishment of a common defense policy for the African continent. This step could demonstrate African Union’s commitment to good governance and its willingness to legally sanction any infractions against the legally established constitutional order of a member state and thereby give effect to the Constitutive Act. In a continent where numerous states are engaged in conflicts of varying degrees, the Peace and Security Council is undoubtedly of vital importance. Article 9 of the protocol on Amendments to the Constitutive Act of the African Union formally established the Council.

 

B. Objectives, Functions and Composition of the Peace and Security Council  

 

One might wonder as to what power does the Peace and Security Council of the African Union have mainly in light of similar and perhaps overlapping tasks that it has with the Security Council of the United Nations. The protocol relating to its establishment (herein after referred to as the Protocol) was framed taking this dilemma into account. It reaffirms its conviction to the Charter of the United Nations which conferred on its Security Council the responsibility of maintaining the international peace and security. It is based on the foundation of the powers of the Peace and Security Council on the United Nations Charter as it recognizes the role of regional arrangements in the maintenance of international peace and security. Therefore, the Peace and Security Council is meant to function in collaboration with the Security Council of the United Nations. It is as a manifestation of this commitment that the Protocol pledges to be guided by the principles enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights along with the Constitutive Act of the African Union.

The objectives of the Peace and Security Council are enumerated in Article 3 of the protocol. The notable objectives of the Council, inter alia, include promotion of peace, security and stability in Africa, anticipation and prevention of conflicts, assist the peace building and post conflict reconstruction activities, join African hands in the fight against terrorism and developing a common defense policy for the African Union.

The Council is expected to attain its objectives by performing tasks which vary from preventing the occurrence of conflicts in Africa to managing the conflicts which have already occurred. Article 7 of the Protocol specifies the specific powers that it has. For the purpose of a general understanding of the mandates of the Council, let’s have a look at what is provided in the Protocol itself as a list of functions meant to be performed by the Peace and Security Council.

 

Article 6

 

The Peace and Security Council shall perform functions in the following areas:

  1. a.Promotion of peace, security and stability in Africa;
  2. b.Early warning and preventive diplomacy;
  3. c.Peace-making, including the use of good offices; mediation, conciliation and enquiry;
  4. d.Peace support operations and intervention, pursuant to Article 4(h) and (j) of the Constitutive Act;
  5. e.Peace-building and post-conflict reconstruction,
  6. f.Humanitarian action and disaster management;
  7. g.Any other function as may be decided by the Assembly.

The Peace and Security Council shall be composed of fifteen member states of which ten of them shall remain in-charge for a term of two years and five of them for a term of three years. The term of office of the latter category is extended by a year as compared to the former with a view to ensure continuity of tasks within the Council. Unlike the case in the Security Council of the United Nations, where the five permanent members have the so called veto power, all members of the Peace and Security Council shall have equal votes in decision making. On top of that, the Peace and Security Council is different from the Security Council of the United Nations in that no member has permanence in this position and it will be rotated among member states of the Union. The Chairmanship of the Peace and Security Council shall be held in turn by the members of the Council in the alphabetical order of their names and shall hold office for one calendar month. A set of criteria is listed down in Article 5(2) of the Protocol that would be used by the Assembly in electing the fifteen members of the Council. The Assembly is duty bound to apply the principle of equitable regional representation and rotation among member states of the Union. In addition to that, the Protocol listed down nine detailed criteria that the Assembly shall take into account in the process of electing member states. These nine criteria may be generalized so that the prospective member state shall have the adequate capacity and commitment to discharge the functions attributed to the Council.

 

C. The Mode of Operation of the Peace and Security Council

 

The Peace and Security Council is a standing decision-making organ for the prevention, management and resolution of conflicts in Africa. The Protocol vows to organize the Council so as to be able to function continuously. In pursuance of this pledge, each member state of the Council shall, at all times, be represented at Addis Ababa, the Headquarters of the Union. Thus the capacity of a member state to have a sufficiently staffed and equipped permanent mission at the Headquarters of the Union and the United Nations is used a criterion in electing member states to the Council. A state that can comply with such requirements is expected to be able to shoulder the responsibilities which go with the membership to the Council.  

The Peace and Security Council may establish subsidiary bodies which it believes to be appropriate for the proper accomplishment of its mandates. In particular, it may set up ad loc committees for mediation, conciliation, or enquiry, consisting of an individual state or group of states. It is also required to seek military, legal and other forms of expertise as it may be necessary in the circumstances of the case. The functions of the Council are highly intrusive in the sovereignty of a member state wherein the intervention is going to be made. This would obviously complicate the tasks that it has given the well-entrenched jealously and respect that most African states have towards their sovereignty. 

With regard to the Agenda to be seized by the Peace and Security Council, it shall provisionally be determined by the Chairperson of the Council based on proposals submitted by the Chairperson of the Commission and the member states. The Council has similar quorum requirements like most other organs of the African Union. The presence of two-thirds of the fifteen members should constitute a quorum.

Similar with that of the other organs of the African Union, the meetings of the Council shall be held in closed meetings. As an exception to this rule, the Council may decide to hold open meetings. There are three possibilities for the Council to make its meeting open to a non-party to the Council.

The first possibility is a case whereby a state that is not a party of the Council shall be invited to present its case and shall participate in the discussions of the Council, provided that it is the party to a conflict or a situation being considered by the latter. It is obvious that, the invited state will participate minus the right to vote on the matter. It has to be stressed that the right of the concerned states to participate does not depend on the mercy of the Council.

The second and third possibility is conducting an open meeting, in which a non party to the Council may get involved in discussions, depend on the decision of the Council. In the second possibility, member state of the African Union that considers that its interests will be affected by the outcome of the case, may be invited to participate in the discussions. The remaining possibility is a case whereby a Regional Mechanism, international organization or civil society organization which is involved in or has an interest in the matter under consideration may be invited to take part in the discussions. In both cases, the participating entities would naturally be devoid of the right to vote.

It is not unlikely for a member state of the Peace and Security Council to be a party to a conflict or a situation that is being examined. In such cases, the member state concerned shall be treated as though it were not a member of the Council. Accordingly, it shall only be involved in the discussion, but not in the decision making by casting votes. In all other cases, each member of the Council shall have one vote. In the absence of unanimity of votes, the Council shall adopt its decision on procedural matters by a simple majority and by a two-thirds majority on matters other than the procedural issues.

The agendas of the Council are so critical that due diligence and strict adherence to the principles of the Union is expected from each member. To exemplify this statement, let’s use two sensitive cases in which the Council may make decisions.

The Council has the power to recommend the Assembly is intervention, on behalf of the Union, if it is convinced that a member state of the Union is in a state of war crimes, genocide and crimes against humanity, as defined in relevant international conventions and instruments, of which the Rome Statue of the International Criminal Court is a notable one.

To take another example of its sensitive mandates, the Council is indebted to institute sanctions whenever an unconstitutional change of government is said to have occurred in any member state of the Union. This should have an impact on the ability of the African Union to protect the well being of vulnerable groups due to the resultant breakdown of law and order. However, if not managed properly, the decisions of the Council may in themselves be sources of bitter conflict between the Union and its member states. 

As it could be inferred from what has been stated hereinbefore, the Peace and Security Council has an important and sensitive mandate. To make it able to function properly and thereby facilitate timely and efficient responses to conflict and crisis situations in Africa, the Council shall be assisted by other entities. In particular, it shall be supported by the African Union Commission, a Panel of the Wise, a Continental Early Warning System, an African Standby Force and a Special Fund.

10. Financial Institutions 

 

The Constitutive Act of the African Union determines that the Union shall have three financial institutions. These are:

  1. A.The African Central Bank;
  2. B.The African Monetary Fund, and
  3. C.The African Investment Bank.

The Constitutive Act does not state the rules and regulations of each of the above three financial institutions. It simply indicates that such matters shall be defined in protocols relating to each financial institution.

A. The African Monetary Fund

 

The African Monetary Fund is needed to advance monetary integration in Africa. The document that creates it underscores that the rationale behind its foundation is certainly not to create a financial institution that would duplicate the activities of the International Monetary Fund in Africa. It was rather suggested to have been motivated by the implementation of the Strategic Plan of the African Union that requires the existence of the institutions, including monetary ones, which would facilitate the integration of African economies, by eliminating of trade restrictions and promoting greater monetary integration.

The above cited document sates that many African experts support the idea of creating the African Monetary Fund, on the grounds that programs supported by the International Monetary Fund have not solved the balance of payments problems of the African countries in a lasting manner. They blame International Monetary Fund programs for relying on too much “adjustment” without the “financial resources” needed to promote growth and reduce poverty. In order to alleviate this problem, the African Monetary Fund, which will be a pool of  central bank reserves and national currencies of the member states of the African Union that are faced with balance of payment problems. It is also stated that African Monetary Fund will differ from the International Monetary Fund in its lending policies, as it will give priority to regional macroeconomic objectives.

The above stated document has details cornering the purposes, membership and resources of the fund, and the liquidation of the African Monetary Fund. Dealing with all these issues would be too detail in this course. However, it has to be stressed that the African Monetary Fund is temporal in character. That is why the document on its creation states that the African Monetary Fund will only be a precursor for the African Central Bank. It predicts that once the African Central Bank is established, it will take over some of the activities of the African Monetary Fund, including the management of international reserves and its lending operations.

An appropriate question in relation to this is the fate of the African Monetary Fund, after the establishment of the African Central Bank. It is expected that, from that moment onwards, the African Monetary Fund would be transformed into an agency that would be responsible for: the economic and financial surveillance and bank supervision, regulation, the audits of the central banks.

 

B. The African Central Bank

 

The African Central Bank is one of the three financial institutions established according to the provide Article 19 of the Constitutive Act of the Union. In fact, the document for the creation of the African Monetary Fund refers the establishment of the African Central Bank as the apex of monetary integration in Africa. However, as it has been stated above, the African Central Bank has been not established.

Towards the establishment of the African Central Bank, the African Union has already set up a steering committee to carry out preparatory works ahead of its establishment. Once the African Central Bank becomes operational, it is expected to take over the activities of the African Central Bank.

 

C. The African Investment Bank

 

The basic rationale behind the establishment of the African Investment Bank is to collectively address the main development challenges facing African countries today and thereby providing finance for regional integration and private sector investment projects in Africa.

The Agreement establishing the African Investment Bank mandated the Bank to foster economic growth and accelerate economic integration in Africa in line with the objectives of the African Union. This objective is expected to be achieved by the Bank upon carrying out five important tasks that Article 2 of the said agreement stipulates. These are:

   i. To promote investment activities of the public and private sector intended to advance regional integration of the member states of the African Union;  

  ii. To utilize available resources for the implementation of investment projects contributing to the strengthening of the private sector and the modernization of rural sector activities in low-income African countries;

iii. To mobilize resources from capital markets inside and outside Africa for the financing of investment project in African countries;

iv. To provide technical assistance as may be needed in African countries for the study, preparation, financing and execution of investment projects; and

V. To undertake other activities and services that may contribute to the fulfillment of its overall mandate.   

Not published yet

Objectives of the African Union

The African Union has seventeen objectives in view. These objectives are enumerated herein under are provided in Article 30 of the Constitutive Act of the African Union and Article 3 of the Protocol to amend the Constitutive Act. These are:

  • Achieve greater unity and solidarity between the African countries and the peoples of Africa;
  • Defend the sovereignty, territorial integrity and independence of its member states;
  • Accelerate the political and socio-economic integration of the continent;
  • Promote and defend African common positions on issues of interest to the continent and its peoples;
  • Encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights;
  • Promote peace, security, and stability of the continent;
  • Promote democratic principles and institutions, popular participation and good governance;
  • Promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples Rights and other relevant human rights instruments;
  • Ensure the effective participation of women in decision-making, particularly in the political, economic and socio-cultural areas;
  • Establish the necessary conditions which enable the continent to play its rightful role in the global economy and in international negotiations;
  • Promote sustainable development at the economic, social and cultural levels as well as the integration of African economies;
  • Promote co-operation in all fields of human activity to raise the living standards of African peoples;
  • Coordinate and harmonize the policies between the existing and future Regional Economic Communities for the gradual attainment of the objectives of the Union;
  • Advance the development of the continent by promoting research in all fields, in particular in science and technology;
  • Work with relevant international partners in the eradication of preventable diseases and the promotion of good health on the continent;
  • Develop and promote common policies on trade, defense and foreign relations to ensure the defense of the continent and the strengthening of its negotiating positions;
  • Invite and encourage the full participation of the African Diaspora as an important part of our continent, in the building of the African Union.

A mere reading of the above stated objectives suggests that the African Union is more comprehensive in its objectives than the OAU. Recent developments have made the African Union able to envisage objectives which were previously relegated to the   domestic affairs of member states. Internal human rights problems within a member state is, for example, a new dimension which widens the objectives of the Union.

Generally speaking, the objectives of the African Union are aimed at bringing political, economic and social integration between member African countries and making the continent a better place for life. It is only in such a way that we can achieve the desired end. The long lists we have in the objectives of the Union are clear manifestations of the fact that it is a general, not a special, international organization.

A simple look at the objectives and principles of the Union would enable one to take the intentions of member states of the Union into account in any endeavor to make a viable interpretation of any of the laws of the African Union.

Principles of the African Union

With a view to achieve the above stated objectives, the Constitutive Act of the African Union and the Protocol for its amendment provide eighteen (18) principles in accordance with which the Union shall conduct its functions. Article 4 of the Constitutive Act and Article 4 of the Protocol provide that the Union shall function in accordance with the following principles:

  1. Sovereign equality and interdependence among member states of the Union;
  2. Respect of borders on achievement of independence;
  3. Participation of the African peoples in the activities of the Union;
  4. Establishment of a common defense policy for the African continent;
  5. Peaceful resolution of conflicts among member states of the Union through such appropriate means as may be decided upon by  the Assembly;
  6. Prohibition of use of force or threat to use force among member states of the Union;
  7. Non- interference by any member state in the internal affairs of another;
  8. The right of the Union to interfere in a member state pursuant to the decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity as well as a serious threat to legitimate order to restore peace and stability to the member state of the Union upon the recommendation of the Peace and Security Council;
  9. Peaceful co-existence of member states and their right to live in peace and security;
  10. The right of member states to request intervention from the Union in order to restore peace and security;
  11. Promotion of self-reliance within the frame work of the Union;
  12. Promotion of gender equality;
  13. Respect for democratic principles, human rights the rule of law and good governance;
  14. Promotion of social justice to ensure balanced economic development;
  15. Respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities;
  16. Condemnation and rejection of  unconstitutional changes of governments;
  17. Restraint by any member state from entering into any treaty or alliance that is incompatible with the principles and objectives of the Union;
  18. Prohibition of any member state from allowing the use of its territory as a base for subversion against member states.

The above list of the principles of the African Union is a combination of those principles which were also that of the OAU and those which appear for the first time with the coming into picture of the African Union.

The first and second principles of the African Union are repetitions if what has been in the legal regime governing the OAU. The rationale towards these principles is self explanatory. As the issue of sovereignty is deeply embodied in colonized Africa, there is a real demand to function in a way that pays enough emphasis to the sovereign equality of member states of the Union.

With this sovereign equality, there exists the interdependence between and among African states. The issue of sovereignty and territorial integrity is deeply intertwined with the international law doctrine of uti possidentis. This is what is reflected in the second principle of the African Union. In the quest of their sovereignty and territorial integrity, member states of the Union should respect their boarders which they inherited from the aftermath of colonialism in Africa. It is a bare fact that the process of delimiting the boundary between African states has been arbitrarily done by European super powers. This has separated families to be citizens of two or more different countries. Be it what it may, it is a wise step to sustain the status quo not to create unending boarder disputes between African states.

The third principle that pays due respect to let African peoples participate in the affairs of the Union seem to be the a latest incarnation of the motto of the founding fathers of the OAU i.e. ‘African solutions for African problems’. With a view to function in accordance with this principle, the Pan-African Parliament was formed to be one of the organs of the African Union.

We can name a common denominator to the fourth, fifth, sixth and ninth principles of the Union. They are generally directed to let member states of the Union resolve their disputes in a peaceful manner. The basics of these principles may be considered as reiterations of what is provided in the United Nations Charter as regards to the way states should resolve their conflicts.

The seventh, eighth, tenth and sixteenth principles of the Union can form one category. A major point for which the OAU has been blamed much is its ‘hands-off’ approach in the internal problems within its member states. The African Union is historically indebted to rectify this problem. That is why it firmly establishes the right of the Union to intervene in a member state in cases where war crimes, genocide and crimes against humanity as well as a serious threat to legitimate order to restore peace and stability are being committed. While doing so, the Constitutive Act prevents any member state, acting individually, from intervening in the internal affairs of another state.

Magliveras and. Naldi, said the following in: “It could be argued that the condemnation and refection of unconstitutional changes of government (i.e. the sixteenth principle of the African Union) is incompatible with the principle of non-interference by any member state in the internal affairs of another [the seventh principle of the African Union]. Although it would appear to say that in this instance it is not actually member states themselves that condemn and reject unconstitutional governments but rather the Union itself.”

Hence, it has to be taken with due concern that the existing legal regime with in the African Union does not entitle member states to take the measure of condemnation and rejection acting on their own capacities. Rather, this could be done based on the rules of procedures of the Assembly of the African Union. As it is clearly stated in the eighth principle of the Union, it is only pursuant to a decision of the Assembly that the Union can intervene in the internal affairs of a member state.

While reflecting on the aforementioned principle, one author said the following: the fact that intervention will require a decision by the Union’s Assembly of Heads of State and Government arguably raises the risk of inaction. Indeed, the history of African leaders’ reluctance to involve the OAU in an internal conflict for fear that it would do the same in the event of conflict in their own countries confirms this risk.

Though the above stated criticisms do not seem to be groundless, the framers of the Constitutive Act of the African Union preferred to take an optimistic position in that respect. The manifestation of this optimistic understanding is stated in the tenth (10th) principle of the Union that expects a member state to request the Union to intervene in its domestic affairs with a view to restore peace and security.

The eleventh and fourteenth principles may be commented on a commingled manner. The eleventh one promotes self-reliance within the framework of the Union while the thirteenth principle promotes social justice to ensure balanced economic development. One critical challenge that the African Union is determined to solve is enabling Africa to stand out being competitive in the globalized world economy. In pursuance of this goal, we should design a means by which Africa can be self-reliant on its own rather than exclusive dependence on external assistance of which the economy is the prime concern.

The twelfth, thirteenth and fifteenth principles may be treated in one cluster. One ground of condemnation against the OAU was lack of proper concern for human rights. Issues like democracy, human rights, rule of law and good governance were relegated as domestic affairs of member states. Now the African Union has got the mandate to be highly involved in such issues.

Not published yet

The Rationale for Personality

Before embarking up on assessing the legal personality of the African Union both at international and domestic levels, it seems imperative to justify why we should bother about the legal personality of international organizations in general and that of the African Union in particular.

As you may recall from the course on the Law of Persons, the concept of personality is of paramount importance for any legally established entity to stand by itself and function accordingly. By the same token, legal personality is an indispensable requirement for an international organization to be able to appear in its own right in legal proceedings, whether at the international, or non-international level.

Member states of an organization have the option of creating an organization which has personality and can function as legal person. This primarily facilitates its activities and is deemed to be necessary for the functioning of the organization. This may not necessarily mean that the personality of an international organization has to be sated in black and white in the instrument that creates it. Not to go to the details, it suffices if you remember what you have student in on course the Law of International Organizations about the concept of functional personality.

To conclude, legal personality enables international organizations to acquire a status without which they would not be able to function as independent units. They would not even be able to conclude treaties with states, to rent buildings or perform other tasks of routine character which may demand an independent legal standing.

African Union’s Personality at an International Level

Having international personality for an international organization, like that of the African Union, implies that such entity can possess rights, duties, powers and liabilities as distinct from its members in international law. In past times, it was states alone which were used to be recognized as persons in public international law. Nowadays, however, the notion of absolute state sovereignty has become obsolete and international organizations are made to operate independently on the international level, distinct form the member states they have.

This may have a bearing on deciding whether the said organizations have international legal personality or not. To take a simple example, such an organization may not be in a position to conclude international treaties without securing unanimous consent of its member states so long as that treaty may have anything to deal with the internal affairs of a member states.

The African Union has, however transformed a lot as regards the issue raised above. Article 4 of its Constitutive Act makes the notion of non-interference to be restricted to a situation whereby a unilateral or otherwise interference of any member state in the internal affairs of another whereas it clearly establishes the right of the Union, in its own capacity, to intervene in such matters. This, and other similar considerations, suggest that the African Union can function in the international plane as distinct from its individual member states.

As is the case in most similar international organizations, the Constitutive Act of the African Union does not confer the status of international personality to the African Union in a black and white manner. This does not, however, mean that the Union can not be considered as an international legal person. In the absence of clearly indicated personality, it has become customary to look for what are commonly called ‘indicias’ of personality which implicate whether the said organization is intended , in its making, to have international legal personality or not.

As you might recall it from the course on the Law of International Organizations, there are different considerations which might be taken into account with regard to the above stated consideration. To put it in simple terms, there are two considerations. The first one is whether the achievement of the purposes of the organization indispensably requires the attribution of international personality or not. In light of this standard, the objectives of the organization will be studied to determine whether they can be achieved without international legal personality or not.

The second consideration, which is more or less similar with the first one, is that the organization must be intended to exercise and enjoy functions and rights which can only be explained on the basis of the possession of international personality.

Based on the aforementioned indicias of international legal personality, we can deduce the fact whether the African Union is intended to have international legal personality or not from the text of the Constitutive Act of the African Union.

As it would be articulated in detail in the preceding sections of the material as well as the discussions made hereinbefore, the African Union has got some supranational characteristics. To take the most obvious instance, the African Union is mandated to intervene in the internal affairs of a member state in cases of grave human rights violations. It is in pursuance of this aim that the Peace and Security Council of the African Union has been established. The Council can not discharge its responsibility unless the Union has international legal personality by its own.  It has to be recalled that no individually member state of the Union can act individually in such circumstances. Rather, it is the Union as a distinct legal organ that is mandated to make the intervention. Therefore, we can conclude that the African Union has international legal personality.

The international legal personality of the African Union may as well be inferred from the similar personality that its predecessor i.e. the Organization of African Unity had by virtue of the General Convention of Privileges and Immunities of the OAU. Article 1 of the Convention reads as:

Article 1

1. The Organization of African Unity shall posses juridical personality and shall have the capacity:

A. to enter into contracts including the rights to acquire and dispose of movable

and immovable property.

B. to institute legal proceedings.

If the Organization of African Unity had such legal personality, the African Union will obviously enjoy it. In fact, since the African Union has more supranational features than that of the Organization of African Unity, it necessarily has such personality.

African Union’s Personality within Its Member States

Legal personality in national law can often be based on the provision of the domestic law of the state in question. Some national laws, notably the United Kingdom, expressly grant to international organizations, of which the state is a member, legal personality or the capacity to contract, to acquire and dispose of property and to institute legal proceedings.

The problem would come to the fore in cases where the local law of the state concerned is silent as regards to the personality of the organization. While expressing their observation on this point,. Schermers and. Blokker have the following to say: “national courts have usually recognized the legal personality of international organizations as they apparently see no reason to deny the legal personality of organizations in which their own state participates.”

The case of the African Union does not seem   to be different from the above mentioned international trend. In the first place, a member state to the African Union may clearly confer personality to the Union. If this does not happen to be the case, it seems logical to infer their legal obligation to do so from the Constitutive Act of the African Union and other subsequent declarations made by the latter.

To take a very simple example, a peace keeping force of the African Union can in no way be denied personality within the territories of a member state. Doing so, may amount to making the mission a fictitious one which cannot touch the ground. Article 24 of the Constitutive Act of the African Union ordains that the headquarters of the Union shall be in Addis Ababa and the Assembly of the Union may establish similar offices in the territory of other member states. Therefore, it can be said that the moment an African Union institution is established within the territory of a member state, the concerned state, ipso facto, recognizes the legal personality of the Union within its domestic jurisdiction. This is so because personality is a necessary requirement even to perform the day to day businesses of the organization.

The Foundation of the Powers of the African Union

When we look at the foundation of the powers of the African Union, it is not unique from other international organizations of similar character. As an international organization, the African Union is founded on the common consent of the member states. It has basically two types of powers. The first is the powers that it is clearly entrusted with in accordance with its Constitutive Act. The second source or foundation of its powers rests on what we call implied powers. Both types of powers will be discussed in the form of highlight in the preceding paragraphs. For the details, students are highly advised to look at their course material on the Law of International Organizations.

The Doctrine of Attributed Powers

The doctrine of attributed powers makes a clear distinction between states on one hand and international organizations on the other hand. In making this distinction, a certain scholar said the following: ‘states are sovereign in the sense that their powers are not dependent on any other authority; the powers of international organizations are limited to whatever it is necessary to perform the functions which their constitutions have defined.’

In other words, states are sovereign and no one can list down what powers they have. International organizations are, however, founded on the volition of their member states, and their jurisdiction is limited to areas which the member states designate for the consumption of the international organization. They can perform tasks which they are attributed to by virtue of the agreement that creates the international organization.

It is usually commented that the existence of the principle of attributed powers would seem to imply a guarantee for the members that the organization would not use powers other than those conferred upon it by the members. Generally speaking, the law relating to a particular organization will flow basically from the constitution of the organization.

In general, in political international organizations like that of the African Union, the so called attributed powers are most of the times defined in a boarder perspective. You will see this in the forthcoming sections of this chapter where it is indicated that the African Union has seventeen objectives and eighteen principles as per its Constitutive Act and the amendment thereto.

To conclude, the doctrine of attributed powers is one foundation of the powers of the African Union. Member states of the Union have mandated it to attain specified objectives according to the Constitutive Act. This is the basic foundation of the power of the African Union on which its legality rests on.

The Doctrine of Implied powers

The doctrine of attributed powers ordains that international organizations always need to have a legal basis for their activities. This, however, is far from reality mainly in case of general international originations like that  of the African Union. Scholars suggest that, in such cases, it is not possible to lay down an exhaustive list of powers of the organizations in a constitution, inter alia, because any organization needs to respond to developments in practice which cannot be foreseen when it is created .This might be the reason why the objectives and principles of the African Union and other similar international organizations are framed in general terms that can encompass wide areas of coverage. This paves the way for other basis for the organization to emerge. Implied and customary powers are of this category.

Who Authors usually make distinctions between implied powers and customary powers. Speaking in general terms, the basis for implied powers are powers explicitly attributed to the organization in the constitution. The basis of customary powers, on the other hand, postdates the constitution and comes on a subsequent time. To understand the essence of what we call implied powers, let’s cite the words of a scholar named Skubiszewski who explains to implied powers as follows: “A term is being read in to the organization’s statute not in order to modify it or add to the members’ burdens, but in order to give effect to what they agreed by becoming parties to the constitutional treaty.” Therefore, implied powers are not new fabrications. Rather, they are the outcomes of interpretations of the very constitution which provides a list of attributed powers.

While dealing with the doctrine of implied powers,. Schermers and Blokker stated that the most fascinating aspect of the doctrine is its flexibility. They go on saying that by accepting the binding character of the (opening) articles of a constitution which deal with the purposes of an international organization, it can easily be concluded that the powers necessary to fulfill these purposes have been implied.

When we come to the case of the African Union,- it seems that the doctrine of implied powers might have a wider room of application. As it has been stated above, and as it is to be dealt with in the forthcoming sections of this material, the objectives and principles of the Union are framed in general terminologies .This might leave a space for one to make an implication of other implied powers from the very Constitutive Act of the Union. Take for example the eighth principle of the Union That establishes the right of the Union to intervene in a member state pursuant to a decision of Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity. This is an attributed power of the Union. Based on this, a question might be raised whether it would be appropriate for the Union to have its own army in pursuance of that aim in a particular state. Here come the virtues of the doctrine of the implied powers. The need to have its own army may be implied from the eighth principle.

Reconciling the Attributed and Implied Powers Doctrines

We have seen genuine concerns on the side of the both doctrines. However, it is not an easy task to determine the extent of the powers that are going to be implied from the explicitly attributed ones.  That is why we have to find out an appropriate scheme to reconcile both doctrines and find a solid basis for the foundation of the powers of the African Union.

While trying to look at a justified implication of powers, some authors made a distinction between powers implied from explicit powers and those that are implied from the purposes and functions of organizations. It is sometimes claimed that the basis of the latter implied powers is broader than that of the former. However, in most cases, purposes, functions and explicit powers are used interchangeably as a basis for implied powers.

Another method that is commonly used to determine the viable extent of implied powers is the question is the power in question necessary or essential for the organization to perform its functions?’ The problem with this method is the high degree of subjectivity it has. Opinions on such matters usually differ from person to person.

The above stated modes of reconciliation have several limitations. The most effective reconciliation between the two doctrines is the existence of a judicial organ empowered to define the scope of implied powers on a case by case basis. The Court of Justice of the African Union was mandated by its Statute to perform such tasks. Recently, there are trends to merge the Court of Justice of the African Union with the African Court on Human and Peoples’ Rights to form the African Court of Justice and Human Rights. This court will have the mandate to resolve the above stated dilemma.

Not published yet


International institutional law is a body of law that dares to make a systematic study of the institutional problems which arise or may arise in all or most international organizations. International institutional law has to be distinguished from the general law of international organizations, as the former is limited in scope to the institutional aspects of the said organizations.

A writer named Jenks described the law governing the structure and general operations of public international organizations as the ‘personal law of the organization that governs its corporate life.’ He writes :

If a body has the character of an international body corporate, the law governing its corporate life must necessarily be international in character; it can not be the territorial law of the headquarter of the body corporate or any other municipal legal system as such with out destroying its international character. The law governing its corporate life will naturally cover such matters as the membership of the body, its competence, the composition and mutual relations of its various organs, their procedure, the rights and obligations of the body and its members in relation to each other, financial matters, the procedure of constitutional amendment, the rules governing the dissolution or winding up of the body and the disposal of its assets in such a contingency. It may also cover the mutual relations of the body, its members and its various organs in respect of matters involving third parties.

From the above reading, it can conclusively be inferred that the law governing the corporate aspects of international organizations is inevitably international in character, and hence it is international law in essence. As it has been said above, international institutional law focuses on the institutional and related law of public international organizations. To be specific, it normally covers such subjects as the interpretation of texts, membership, budgeting, international personality and capacities of the organization in issue.

When a study is made into international institutional law, a focus is bound to be made on the international organization that is being the focal point of the study. Each organization has its own features deserving a separate treatment of its own. In connection with this, Amerasinghe:

There are still no general rules or principles relating to international bodies corporate to which we can automatically turn when in search of their personal law. We have no recognized body of such rules or principles even as regards the existing types of international body corporate; as regards possible further types of international body corporate we are entirely in a realm of speculation. For the existing types we have the constituent instrument of each of the bodies concerned, amplified somewhat by its constitutional practice, and calling for interpretation in accordance with the general principles of treaty interpretation recognized by international law.

The theme of the above quotation suggests that there is no ‘law’ of international organizations but there are ‘laws’ of international organizations. One author stated that since the law governing each organization is to be found in or flows from its constitution, and constitutions are individualized instruments, there can be no general law nor general principles of applicable to all or several organizations.

Though each international organization has its own unique features in terms of its institutional operations and the law applicable to it, it does not mean that there is nothing in common between international organizations of different characters. To use the words of Amerasinghe, uniformity or similarities exist; for instance, in the general principles which apply (e.g. in interpretation) as a result of the application of conventional law (e.g. privileges and immunities), in customary international law which applies (e.g. responsibility of and to organizations) as a result of the applications of general principles of law ( e.g. ultavires and employment relations) and because there are (may be ) similarities in constitutional texts of different international organizations.

The followings are the significant and distinctive features of international institutional law in general:

  1. ‍the constitutional texts and law creating practices of any organizational will establish law for that particular organization which law will not necessarily and as such be binding on other organizations (e.g. amendment and structure of organs);
  2. where constitutional texts are similar, the interpretation or development by practice of those texts by one organization may, however, provide precedents or guidelines for another organization ( e.g. membership);
  3. In some areas customary international law as being generally applicable will govern (e.g. responsibility of and to organizations and interpretation of texts.);
  4. there are general principles of law which are applied across the board in certain areas (e.g. the doctrine of ultra vires and employment relations);
  5. certain presumptions and implied principles (sometimes flowing from relevant judicial decisions) will apply as general law in the implementation and interpretation of organizational constitutional law( e.g. international personality, liability  vis-à-vis  third parties of members of an organization for its obligations); and
  6. In some areas general conventional law may be relevant to the operation of all or most. Organizations (e.g. immunities and privileges).

With all the above background, we can embark  up on looking at the African Union law as part of the international institutional law.

The Position of the African Union in the Classification of International Organizations

This part deals with, the classifications of international organizations along with the place of African Union based on each method of classification. In so doing, an attempt has been made to compare and contrast the African Union with other international organizations such as the United Nations, the European Union and the Organization of American States.

When we try to assess the position of the African Union in the classification of international organizations, our focus would be limited to public international organizations and not to the private international organizations commonly known as the non-governmental organizations (NGOs). Hence, we discuss the indispensable criteria that a given international organization is bound to fulfill for it to be referred to as a public international organization.

The first element that is required from a public international organization is that it has to come into being by an international agreement. Creating such an organization by virtue of a multilateral treaty among sates is the most usual form of international agreement. But, it does not mean that a treaty is the only way to found an international organization. It is even possible for government representatives assembled in a conference to decide on the establishment of an international organization without using a treaty. There are different reasons why states prefer a treaty.

First of all, organizations which are not created by a treaty will have to prove the existence of an interstate agreement when they claim a public intergovernmental status. The interstate agreement is a clear indication of this status in most cases. It has also been accepted by the United Nations as the main criterion for distinguishing these organizations from non- governmental organizations.

Another reason why an international agreement is needed is to establish the separate legal personality of the new organization, and thus distinguish it from mere organs of organizations. It is this separate legal identity that gives organizations a degree of independence that mere organs of a given organization usually lacks.

When we examine the African Union in light of the first criterion or element required from public international organizations, the African Union can perfectly be referred as such. The African Union is a result of an international agreement between 53 African states that met in Lome, Togo on 11th of July, 2000 and adopt the Constitutive Act of the African Union.

The second element or criterion that is required to be fulfilled by a public international organization is that it should contain at least one organ formed by delegates of two or more states and should not be depended on any particular state. If a certain organization is fully dependent on one national government, it can, in no way, be considered as a public international organization even when a lower organ is partly formed by officials from other states.

The African Union fulfills the second element as it has so far established ten organs of its own and even mandated its Assembly of Heads of States and Government to decide to establish others, if a need arises, as per Article 5 of the Constitutive Act of the African Union. On top of that, the organs of the African Union, as will be discussed in the next chapter of this material, are based on the common  will of the African states and is not dependent on any single African nation.

The third criterion or element of a public international organization is establishment under international law. Since international agreements are normally concluded under international law and as the African Union has been founded by virtue of the Constitutive Act, which by itself is an international agreement, we can safely conclude that it fulfills this criterion as well.

Having identified what we mean by public international organizations, we can safely embark  up on classifying such organizations and find the place of the African Union therein.

Depending on the purpose of the study for which the classification is used, international organizations may be classified in many different ways. Taking the function of the organization may be taken as being appropriate for the purpose of our discussion . This may help one to see what distinguishes the African Union as an international organization from other international organizations.

We can classify international organizations in the following three methods of comparison: Universal Vs Closed organizations, Intergovernmental Vs Supranational organizations and finally Special Vs General organizations.

  • Universal or Open Vs Closed Organizations

A universal organization is one which includes in its membership all the states of the world. This is not the case of any past or present international organization yet. Thus, it may be more accurate to use the terms “universalist” suggested by Schwarzenberger or “of potentially universalist character” used in the treatise of Oppenheim…While the organization is not completely universal, it tends towards that direction.

One can deduce from the above reading that what are normally referred to as general or open organizations are those whose membership is open to any state based on its volition. It has to be noted that the existence of certain conditions to be satisfied for admission thereto do not affect the “openness” of the organization. For instance, the United Nations, which is an ideal example of a general international organization, requires a state to accept and be bound by its Charter for it to be admitted to the United Nations.

As opposed to universal organizations, some organizations seek membership only from a closed group of states and no members from outside the group will be admitted in any case. There are three types of closed organizations: regional organizations, organizations of states with a common background (e.g. language or a political system,) such as the Common Wealth, and closed special organizations (e.g. Article 7 of the statute of the Organization of the Petroleum Exporting Countries (OPEC) provides that membership is open to any country with a fundamentally similar interests to those of member countries.

At this juncture, it seems easier to classify the African Union as a closed international organization mainly because it is a regional organization in which a country from out side of Africa can not be a member. Article 29 of the Constitutive Act of the African Union makes admission to membership open only to an African state. The European Union and the Organization American States share similar characteristics with the African Union, in this regard.

  • Intergovernmental Vs Supranational Organizations

The distinction between intergovernmental and supranational organizations serves a lot in appreciating the legal mandates of a given organization. Before embarking up on taking a position as to whether the African Union is an intergovernmental or a supranational organization, it would be wise to see the fundamental characteristics of each type of organization.

The following are the most fundamental characteristics of intergovernmental organizations:

  • The decision making powers are, in fact, exercised by representatives of governments. Organs composed of persons independent of member states, committees of experts or parliamentary assemblies may play, an advisory role; but they will generally not have the power to take final decisions.

  • In important matters, governments can not be bound against their will. Intergovernmental organizations seek collaboration among governments, and are in no way superior to them. Although intergovernmental organizations can some- times make binding decisions, this is only possible where the decision in question enjoys the unanimous approval of all members .By voting against a draft decision, a government can thus prevent its adoption.

From the above fundamental characteristics, one can easily deduce that intergovernmental international organizations are like a common forum for member states in which they act on a collective basis whereas the organization by itself cannot act as a vanguard of its member states and make binding decisions concerning the latter. Unlike supranational international organizations, intergovernmental ones are established for cooperation between governments or governmental organs without involving the legislature, the judiciary and citizens of their member states.

Coming back to the supranational international organizations, the following are their most fundamental characteristics:

  • The organization should have the power to take decisions binding the member states.
  • The organs taking the decisions should not be entirely dependent on the cooperation of all the member states. Some independence may be obtained in two ways. First, by allowing binding decisions to be adopted by majority vote, so that the member states can be bound against their will. Second, by composing the decision making organs of independent individuals.
  • The organization should be empowered to make rules which directly bind the inhabitants of the member states. This power enables the organization to perform governmental functions without the need or the possibility for national governments to transform the rules of the organization in to domestic law.
  • The organization should have the power to enforce its decisions. Enforcement should be possible even without the cooperation of the governments of the states concerned. It may well be possible that other organs of the member states are used to aid the organization in this field. Thus, a national parliament and the national judiciary may coerce their government to fulfill its obligations to the organization.
  • The organization should have some financial autonomy. The financing of organizations from funds entirely subscribed by the member states leads to a dependence extending beyond the purely financial field. By refusing to provide the organization with sufficient income to appoint qualified staff members or necessary equipment, governments could hamper the functioning of the organization.
  • Unilateral withdrawal should not be possible. In a supranational organization, the members should not even have the power collectively to dissolve the organization or to amend its powers without the collaboration of the supranational organs. The organization can not rank above its members while it depends on their agreement for its continued existence.

The characteristics of supranational international organizations are stringent to be fully complied with by most of the international organizations that exist today. In the strict sense of its characters, there is no such organization to date. The European Union is usually cited as the only prominent example in this regard. This does not, however, mean that the European Union can fully suffice to be named a supranational organization. It is commented that even the most important decisions of the European Union are made by compromises between the participating governments.

As indicated above, so far, there is no organization which is fully supranational. This makes the term supranational a relative one. The formula suggested is that the closer the aforementioned characteristics are to being fulfilled, the more supranational the organization will be. It is with this parameter that the European Union is considered as being more supranational than others. “The following has been said about the United Nations. ‘The United Nations is not a supranational organization but it has the supranational characteristic of   taking decisions by majority vote. Although the United Nations can take decisions on peace keeping against the wishes of some members, it has encountered difficulties when these members refused to pay the expenses related to these decisions.’

With all the above background, we will encounter an issue whether the African Union is an intergovernmental or it is a supranational organization. It has to be recalled that being supranational is a matter of relative assessment. So it would be wise to look at the institutional structure and functioning of the African Union to decide on the issue at hand. This, however, will take us too far. Hence, it would be more appropriate to take this issue as it is and single out the supranational characteristics of the organizations as we deal with the institutional structure of the African Union in the next chapter.

For the purpose of this section, we can safely conclude that the African Union has more supranational characteristics than that of its predecessor i.e. the OAU. To take one point of comparison, Article 36(b) of the OAU Charter named non-interference in the internal affairs of member states as one of its principles .This clearly denotes that OAU had no say over what is going on inside its member countries. The African Union, on its part, establishes “the right of the union to intervene in a member state pursuant to a decision by its Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” (Art 4(h) of the Constitutive Act). This suggests that African Union has more supranational characteristics than its predecessor.

To take another point that signifies the increasing supranational character of the African Union, it is better to see Article 35 of the Statute of the African Court of Justice and Human Rights. Under the proposed merged court, which is a relatively recent phenomenon, locus stand has been broadened to include individuals and relevant human rights organizations accredited to the African Union or any of its organs. Accordingly, the old requirement of an additional declaration to allow individuals and NGO petitions has been dispensed with, and the majority of victims can approach the proposed The African Court of Justice and Human Rights. This development shows that at least one of African Union’s organs has become accessible to non-state actors. This is a typical feature of a supranational (transnational) organization. The trend is going towards increasing the supranational character of the African Union though it can not be accurately referred to, as such, as it stands today.

  • Special Vs General Organizations

Special organizations are those which are established to perform a specific function and are usually referred to as functional or technical organizations. Their main characteristics are the limited scope and technical nature of their tasks. The World Health Organization, which was founded for improving health, may be considered as an example in this regard. In such organizations, members usually delegate experts instead of diplomats to the meetings of the organization.

General or political organizations, on their part, are founded for achieving different goals. They are mainly characterized by the vastness of the fields they may cover and the presence of diplomats or politicians, instead of experts on particular issues, in the delegations of their member states.

The African Union, like the United Nations, the European Union and the Organization of American States, is a general organization as it is established to pursue seventeen objectives of multifaceted character.

Not published yet

The Relationship of African Union and NEPAD

The establishment of the African Union is not an end in itself. It is rather a means to a desired end; the end being promotion of development and good governance in the African continent. Therefore, the African Union has to be substantiated with other programs that can help in achieving the desired end. The next part of the material, briefly discusses the origin and mandates of NEPAD and its relation to the African Union.

Origin and Mandate of NEPAD

The origin of NEPAD could be traced back to the OAU Extraordinary summit held in Sirte, Libya in September 1999 where the then President Mbeki of South Africa and President Boutheflica of Algeria were mandated to engage Africa’s creditors on the total cancellation of Africa’s external debt. These being its inception, different African leaders kept on looking for a scheme whereby Africa’s marginalization from the world economy could be changed for the betterment of Africa.

On 11 July 2001, the Summit of Heads of States and Governments held in Lusaka, Zambia, formally approved the New African Initiative which was a merger of the Millennium Partnership for Africa’s Recovery Program and the Omega Plan. Then, the policy framework of the initiative was finalized by the Heads of States of the Implementation Committee in Abuja, Nigeria, on 23 October 2001. The Implementation Committee was composed of fifteen states, including Ethiopia and chaired by the then President Obsasanjo of Nigeria, vice-challed by President Wade of Senegal and Boutheflica of Algeria. It was the implementation committee that charged the name of the program from the New African Initiative to New Partnership for Africa’s Development (NEPAD).

Coming back to its mandate, NEPAD is an integrated development plan that addresses key social, economic, and political priorities in a balanced and coherent way. One writer described it as a “holistic, comprehensive integrated strategy framework for the socio economic development of Africa.”

Eradication of poverty in Africa and placing African countries on a path of sustainable growth of development in their individual and collective capacities named as the primary objective of the NEPAD. Is main objective enabling Africa to be a competent actor in world economies by reducing Africa’s marginalization as a result of the new world order i.e., globalization.

Another notable characteristic of NEPAD is that it is firmly believed that aid based relations with the developed world can not be a sustainable solution to Africa’s problems. Rather, Africans have to be the real owners of the process involved therein whereas there is a genuine concern to retain its partnership with the rest of the world.

While highlighting on the essence of NEPAD, a formal document of the African Union  Terms of Reference for the study on the integration of NEPAD into the structures and processes of the African Union, state.

The NEPAD Program was established by African leaders as a socio economic program to extricate the continent out of poverty, under-development and regionalization within the world economy. Conscribes of past experiences of failed attempts at providing a new deal for the continent, African leaders developed a leadership structure that would keep them in the driving seat of the economic development of the continent, reshaping the relationship with the development partners and driving programs of economic development and poverty eradication.

As it can be inferred from the above quotation, NEPAD is basically aimed at securing socio economic development to Africa.

The following are the prominent expected outcomes of the NEPAD program:

  • Economic growth and development and increased employment;
  • Reduction in poverty and inequality;
  • Diversification of productive activities;
  • Enhanced international competitiveness and increased exports, and
  • Increased African Integration.

NEPAD as Part of the African Union System

Having seen the general features of NEPAD, one may question whether the NEPAD program stands by itself or it is a part of the African Union system. NEPAD is are part of the African Union programs. That is why the African Union established a Coordination Unit on NEPAD. The Coordination Unit was mandated to assist in the gradual integration of NEPAD into the structures and processes of the African Union, as soon as possible.

Reaffirming NEPAD as part of the African Union system, the Executive Council of the African Union state that

through NEPAD, the African Union intends to give prominence and attention to various socio-economic problems that have marginalized Africa in the global polity through the promotion of regional and continental integration as well as international partnership.

Hence, NEPAD is unquestionably an African Union program and is directly accountable to the Union. That is why the NEPAD Heads of State and Government Implementation Committee submit an annual report to the African Union Summit.

As an African Union program, NEPAD has its own mandates, which in one way or another, substantiate the objectives and principles of the African Union. To harmonize NEPAD with the African Union program and to avoid duplication of tasks, the NEPAD coordinating Unit of the African Union has the following principal objectives:

  1. i. To facilitate the full integration of NEPAD into the African Union Commission, and the achievement of the overall objectives of NEPAD within the framework of the Commission’s program;.
  2. ii. To support the NEPAD secretariat in the provision of technical service for the work of Heads of State Implementation Committee and NEPAD steering committee with the aim of becoming the Core Coordinating Secretariat of the NEPAD program in the near future; and
  3. iii. To serve as a laison between the commission, and the other agencies such as ADB( African Development Bank),ECA    (Economic commission  for Africa) RECs (Regional Economic Communities) and partnership in ensuring the attainment of the overall objectives of NEPAD, in particular,  the operationalization of the priority areas such as resource mobilization and infrastructural and other projects.

The relation between African Union and NEPAD has to be taken seriously as it demands commitment from African States. A Policy Seminar Report was organized by the Center for Conflict Resolution held in Cape Town, under the title:  “Building an African Union for the 21st Century Relations with Regional Economic Comminutes, NEPAD and Civil society”. This report mentioned three potential challenges that have to be tackled first before a successful integration between African Union and NEPAD.

The first critical challenge that both institutions must address towards a successful integration is that the commitment to democratic governance enshrined in the NEPAD document must be reinforced. Second, African leaders must promote and institutionalize deeper coordination and collaboration among themselves, Africa’s sub regional organizations and civil society actors. The third area of interest which is recommended as demanding due concern is Africa’s duty to address the financial and infrastructural weaknesses of its social, political and security institutions.

The Relation between African Union and Sub-Regional Organizations in Africa

It is believed that close collaboration between Africa’s regional communities on the one hand, and the African Union on the other, hived will accelerate the socio economic development of the continent. Policy makers generally take of the RECs as the building blocks of the African Union as enshrined in the Abuja Treaty of 1991-co-ordinations and harmonization of policies between them are of the major concern.

Article 28 of the 1991 Abuja Treaty Establishing the African Economic Community made the issue of strengthening Regional Economic Communities a major Concern:

Article 28 Strengthening Regional Economic Communities

  1. 1. During the first stage, Member states undertake to strengthen the existing regional economic communities and to establish new communities where they do not exist in order to ensure the gradual establishment of the community; and .
  2. 2. Member states shall take all necessary measure aimed at promoting increasingly closer cooperation among the communities, particularly through co-ordination and harmonization of their activities in all fields or sectors in order to ensure the realization of the realization of the objectives of the community.

As it is mentioned in the first chapter of this material, the adoption of the 1991 Abuja treaty was one of the major antecedents to the African Union. The African Union was meant to be a forum that can accelerate sub regional economic integrations which would in due course be amalgamated to create the African Economic Community. In pursuance of this expectation, the African Union has so far recognized seven Regional Economic Communities. Besides recognizing them, the African Union dares to collaborate with them so as to create integrated Africa in the forthcoming future. These Regional Economic Communities are highlighted in the following paragraphs.

Inter -governmental Authority on Development (IGAD) was created in 1996. It has seven member countries in East Africa. These are Djibouti, Eritrea, Ethiopia, Kenya, Somalia, Sudan and Uganda. The IGAD was basically founded to address the recurring and sever droughts and other natural disasters that caused widespread famine, ecological degradation and economic hardship in the Eastern African Region. Its members felt that a collective and integrated measure can successfully help in reducing such problems as compared to non integrated national efforts.

The Common Market for Eastern and Southern Africa (COMESA) was established by Treaty in 1991. It comprises19 member states: Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya (since June 2005) Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe. The COMESA main objectives include taking advantage of a larger market size, to share the region’s common heritage and allow greater social and economic co-operation with the ultimate objective of creating on economic community.

The East African Community (EAC) is another sub-regional intergovernmental organization of the Republics of Kenya, Uganda, Tanzania, Burundi and Rwanda. Its main objective is to enhance the region’s competitiveness through ever deeper integration inclusive of a customs union, a common market, a monetary union and ultimately a political federation of East African states.

The Economic Community of Central African States (ECCAS) was established in 1983. It has ten member states. These are Angola, Burundi, Cameroon, Central African Republic, Chad, Congo, Democratic Republic of Congo, Equatorial Guinea, Gabon and Sao Tome and Principe. Among the vital steps taken by ECCAS, its adoption of a protocol relating to the establishment of a network of parliamentarians of Central Africa and the early warring system for Central Africa are the notable ones.

The Economic Commission of Western African States (ECOWAS) was established in 1975. It is a sub-regional grouping of fifteen countries including Benin, Burkina Faso, Cape Verde, Cote-Divore, Gambia, Ghana, Guinea, Guinea, Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. The EOWAS has four objectives: the removal of customs for intra-ECOWAS trade and taxes having equivalent effect, the establishment of common external tariff, the harmonization of economic and financial policies, and the creation of single monetary zone.

The Southern African Development Community (SADC) was established in 1992. It has fourteen member states: Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. SADC has monetary, economic, political, security and cultural objectives which aim at cooperation and integration among its member states.

The Arab Maghreb Union (AMU) was established in 1989. It has five member states: Algeria, Libya, Mauritania, Morocco and Tunisia. It dares to guarantee cooperation with other regional institutions and between its member states.

As is evident from the highlights provided in the preceding paragraphs, many of the sub-regional organizations have an objective of creating a harmonized and integrated region in many fields. This is of much help to pursue African Union’s objective of accelerating the political and socio-economic integration of the continent. As can be seen from the Rules of Procedure of the African Union Assembly (cf. Chapter Two), the RECs are made part of the African Union’s activities. In fact, it is decided that a delegate is appointed to interface with the RECs.  This strengthens the legal relationship between the African Union and the mentioned sub-regional organizations. The RECs are now becoming organs that can implement decisions adopted by the African Union Assembly. For example, African Union may impose sanctions on a member state wherein unconstitutional change of government has occurred. Such economic sanctions can effectively be implemented through the REC to which the state in issue is a member.

Before winding up this discussion, let’s  have a look at the policy seminar report that was held in Cape Town, in August 2005, to evaluate the relation between the African Union and the RECs. Different problems were highlighted in that document. The first problem mentioned was the proliferation of the sub regional organizations and multiple memberships of many African states in different RECs that complicated efforts to ensure harmonization and coordination. The second problem mentioned was member states’ reluctance to pool their sovereignty in favor of regional integration. Due to these and other infrastructural reasons, the RECs were blamed to be unable to implement key decisions emanating from the African Union in a timely manner.

Not published yet

The creation of the African Union as a new Pan-African body is not a sudden happening that has not been anticipated in The African history. It was rather a result of the age-old process of pan-African movements in different courses of history. No one can dare to have a full-fledged figure of the historical roots of the African Union without paying much attention to the Pan-African movements, which may be considered as a founding stone of the OAU, the African Union and any other forthcoming political and economic integration between and among The African states. The spirit of Pan-Africanism has been used as an engine for the creation of cooperation of African peoples and states in different generations, and is expected to be the same in the future.

 

Having regard to the instrumental character of Pan-Africanism in any form of African solidarity, it seems imperative to define what it is. A Martini, in his includes this in the reference last. defineds Pan as Africanism follows manner:

 

Pan-Africanism is an invented notion. It is an invented nation with a purpose…. Essentially, Pan-Africanism is a recognition of the fragmented nature of the existence of African’s, their marginalization and alienation whether in their own continent or in the Diaspora. Pan-Africanism seeks to respond to Africa’s underdevelopment. Africa has been exploited and a culture of dependency on external assistance unfortunately still prevails on the continent. If people become too reliant on getting their support, their nourishment, their safety from outside sources, then they do not strive to find the power within themselves to rely on their own capacities. Pan-Africanism calls upon Africans to drawn from their own strength and capacities and become self reliant. Pan-Africanism is a recognition that the only way out of this existential, social and political crisis is by prompting greater solidarity amongst Africans.

 

 

As can be inferred from the above quotation, Pan-Africanism is neither a name of an African organization; nor an ideal imagination of what Africa should be in the future. It is rather an engine for a continued African solidarity and integration that can spur the effectiveness of Afro-Centric regional integrations. It has served as such in different times in history.

The idea of Pan-Africanism would remain futile unless it is capable of taking an institutional form. It can be said that Pan-Africanism has so far undergone three phases of institutionalization. By institutionalization we are referring to the coming up of an organization that claims to further the ideals enshrined in the Pan-African movement.

The first institutionalization of Pan-Africanism is the series of Pan-African Congresses. In describing this form of institutionalization, Martini stated ‘Depending on how one chooses to interpret or define Pan-Africanism, the first attempt to institutionalize If the goatali is  more them three gives, it has to follow the standardized from of quoting it Pan-Africanism can be situated either at the 1896 Congress on Pan-Africanism held in Chicago or at the creation of the African association in London in 1997. In both instances, the term ‘Pan-African’ was widely used to signify the coming together of people of African descent”.

In 1900, the first Pan-African conference was held in London where a new organization called the Pan-African Association was established with the objective of securing the rights of the African descendants. From that time on wards, up to seven Pan-African congresses were held in Europe and Africa with similar objectives of creating African solidarity.

The second institutionalization of Pan-Africanism came with the inauguration of the OAU in 1963. This achievement witnessed a greater commitment on the part of the African states to the Pan-African movement which served as a driving force for such occurrence. This historical trend goes ahead with the third institutionalization of Pan-Africanism under the existing African Union.

One might dare to internalize the proper link between the aforementioned institutionalizations of Pan-Africanism. In connection with this issue, Martini Timothy has the following to say. The fundamental insight gained from the emergence of the organized Pan-Africanism is that the power of individual country or society is amplified exponentially when it is combined with the forces of other countries and societies. It is a similar way of thinking that animated and informed the founders of the OAU and the present African union. This same type of thinking is potentially expected to animate and inform future generations of Africans and their diaspora to be  kin in promoting ever-increasing social, political and economic union.

Making the Pan-African movement a stepping-stone in the study of historical antecedents to the contemporary African Union has a lot to serve. If one knows the purpose of Pan- Africanism, then the steps to achieve its goals become clearer to understand it is in this context that one can be able to appreciate the emergence and concretization of the African Union. Considering the African Union as a new phenomenon that came into picture in the beginning of the 21st century is a regrettable historical mistake that can in no way give one a full-fledged historical picture of the Union. It would be more appropriate, to understand that the African Union is not a new happening, but the latest incarnation of the idea of Pan-Africanism. It is with this idea in mind that one can better understand the beginning and destiny of the African Union.

OAU as a Predecessor to the African Union

The aim of this section is not to give the detailed account of the OAU as an African organization. Rather the OAU is highlighted to show in way that it can be considered as a predecessor to the African Union.

The OAU, placed in a longer term of historical current, is a manifestation of the Pan- African movement which originated in the USA during the late 19th century. In the USA, thousands of blacks, with African origins found it intolerable to bear the agonizing experience of racial discrimination and alienation. Some of their prominent leaders, namely WEB Du Bois (1868-1963) and Marcus Garvey (1885-1940) raised a flag of revolt against the then prevailing injustice and chose to speak for the entire black race which was leading a dehumanized existence. They subordinated the immediate problems of American blacks to a grand and enlarged vision of Pan-Africanism, which, in essence, stood for the unity and dignity of the black race.

As it has been reflected by Harshe in an article in the USA, the Pan-African movement has grown, substantially, acquiring different forms with charging times. The period prior to the birth of OAU had its own historical contribution to fully appreciate the on going Pan-African process.

Prior to the birth of the OAU, there was an inter-state politics in Africa which was characterized by growing rivalry between the Casablanca and Monrovia group of states. This rivalry, at least for a while, hindered the realization of the OAU.

The Casablanca group was principally led by Kwame Nkrumah of Ghana, Sekou Toure of Guinea, and Madibo Keita of Mali. The group vehemently opposed colonialism, racism and neocolonialism. Among other things, it opposed the Katanga secessionist movement, gave an extended support to Patrice Lumumba’s efforts to oust the Belgians from Congo, demanded French withdrawal from Algeria and was sympathetic towards the Soviet Union due to concrete Soviet support to their activities. This group had a more radical approach involving the creation of the federation of African states with joint institutions with a joint military command.

The Monrovia group, on its part, was constituted by the Brazzaville group including most of the moderate Francophone states such as Ivory Coast, Gabon, Niger, Senegal, Monrovia, etc. In addition, it had members like Ethiopia, Liberia, Nigeria and Somalia, which were neutral towards the rivalry between Casablanca and Brazzaville groups. It stood for the protection of national sovereignty, territorial integrity and independence of its members. It defended the principle of mutual non-interference in inter-sate relations and welcomed interstate technical and economic cooperation. Instead of snapping the ties with the west, the Monrovia group sought western cooperation in the process of promoting development.

The rivalry between the Casablanca and Monrovia groups was not, however, an unbridgeable gulf that could prevent the birth of the OAU. Article Harshe stated three basic justifications for this historical scenario. To begin with, like the Monrovia states, the Casablanca states were also getting absorbed in the world capitalist economy despite their sporadic tirade against neo-colonialism and imperialism. The penetration of western finance capital in the extractive sectors of Guinean economy and Ghana’s membership of British Commonwealth amply illustrated this position. When succinctly expressed, both groups were eventually moving in the same direction. Secondly, despite their theoretical differences, both groups were keen to regulate and promote inter-state cooperation in Africa. Thirdly, though on their own ways, both groups aimed at liquidating colonialism and racism.

Harshe concludes that both groups had a lot in common. These commonalities were backed by the mediatory efforts of uncommitted (i.e. not strictly a proponent of either group) states like Ethiopia gave birth to the Organization of African Unity. Having passed all these ups and downs, the OAU was formally established in Addis Ababa, Ethiopia in May, 1963. The OAU Charter presented both views but using the vision of the Monrovia group as its core.

Wolfer states the tension in early days of the OAU and the compromise adopted as follows. “The main contention that surrounded the founding of the OAU is well known: whether the institution should lead to a union of states or merely to an association of the independent units.” Nweke, also states “The OAU was the product of a compromise between African statesmen who wanted political union of all independent African states and those who preferred functional cooperation as a building block towards the construction of an African socio-psychological community”.

The above statements can create a historical link between the OAU and the African Union. In the contention that surrounded the founding of the OAU, the latter statement  views the OAU as an association of the independent units prevailed over the creation of a union of states. The latter view had to wait for another favorable historical ground to be a reality. Wolfer state that the former position which failed to be operational has left its foot prints in the naming of the organization. He states “the agreed name [for the organization] was proposed in French by President Hubert Maga of Dahomey (possibly at the instigation of President Kwame Nkrumah of Ghana); and President William Tubman of Liberia insisted that the English translation be organization of (emphasis added) African Unity, rather than organization for African unity”.

The Assembly of the African Union has passed the Durban Declaration in tribute to the OAU and the launching of the African Union. The Durban Declaration describes the OAU in the following manner:-

The establishment of the OAU was a statement of determination to define Africa, not as individual countries but as collective bound together by geography, history and destiny. It was a self-empowering decision to find a framework for cooperation and forum for advocacy for African’s causes and for joint action. This determination found concrete expression in the objectives the founding fathers set for the OAU in its Charter of  promoting unity and solidarity among African states, of coordinating and intensifying cooperation for development, of defense for sovereignty, territorial integrity and independence of African state, of eradicating colonialism and of promoting international cooperation within the framework of the United Nations. The founding fathers saw a common future for Africa not contained by borders, linguistic differences, color, religion or other divisive legacies of colonialism. They saw one Africa, united in its diversity, speaking one language of freedom, unity and development under the Organization of African Unity.

Article II of the OAU Charter specifies the OAU’s purposes and indicates areas of intra-African cooperation. The following are the purposes of the OAU: -

-      To promote the unity and solidarity of the African states,

-      To coordinate and intensify their collaboration and efforts to achieve a better life for the peoples of Africa;

-      To defend their sovereignty, their territorial integrity, and their independence;

-      To eradicate all forms of colonialism in Africa, and

-      To promote international cooperation, having due regard for the Charter of the United Nations and the Universal Declaration of Human Rights,

Article III of the OAU Charter lists down the principles of the OAU, which are derived from the postulated purposes of the same. The principles of the OAU: include

-      The sovereign equality of all member states;

-      Non interference in the internal affairs of member states;

-      Respect for the sovereignty and territorial integrity of each state and for its inalienable right to independent existences;

-      Peaceful settlement of disputes by negotiation, mediation, conciliation, or arbitration;

-      Unreserved condemnation, in all its forms, of political assassination as well as of subversive activities on the part of neighboring states or any other state;

-      Absolute dedication to the total emancipation of the African territories that are still dependent; and

-      Affirmation of a policy of non-alignment with regard to all blocs.

Many of the purposes and principles of the OAU were keen in those days. Most of them are, however, not pertinent to the contemporary situation of Africa. A clear exemplification of such a holding may be the last that state the  principle of the OAU i.e., affirmation of a policy of non-alignment with regard to all blocs. By now, the mentioned blocs, the capitalist and socialist blocs are no more in rivalry. That is way a need was felt to bring a timely organization for Africa.

It can be argued that the African Union was conceived in the womb of the OAU. Stated other wise, though the objectives and principles of the African Union and the OAU are different, as is evident from the surrounding historical conditions, the idea of establishing the African Union was consolidated inside the OAU. Baimu shares this opinion as “It was noted that in the period between 1966 and 1999 efforts were made to realize African unity through the means of economic integration. This was expressed theoretically in a number of OAU declarations, resolutions and plans of actions that were adopted between 1968 and 1980, and in concrete terms in the formation of several sub-regional blocs.”

The conception of the African Union inside the OAU is highly reflected in a number of resolutions, decisions and declarations adopted by the OAU Assembly of the Heads of States and Government with a desire to realize African economic integration. The Monrovia declaration of commitment on the guidelines and measures for national and collective self-relations in economic and social development for establishment of a new international order called for the creation of the African Economic Market as a prelude to an African Economic Community, and the Lagos Plan of Action (LPA) which was adopted by the second extra-ordinary summit of the OAU in April 1980 and envisaged the creation of an African Economic Community by the year 2000.

The idea of continental economic integration was concretized in the 1991 Abuja Treaty Establishing the African Economic Community, which was adopted under the auspices of the OAU on 3 June 1991 and entered in to force on 12 May 1994 after the requisite number of ratifications was attained. Article 6 of the Treaty envisages the establishment of the African Economic Community, AEC, as an integral part of the OAU upon passing six consecutive stages over a transitional period not exceeding thirty-four years. The Abuja Treaty envisions the establishment of the AEC as a goal that should be achieved through encouraging the formation of sub-regional economic bodies which would eventually amalgamate to create the AEC.

Article 4 of the Abuja Treaty enumerates four basic objectives of the AEC. These are:

$1·         To promote economic, social and cultural development and the integration of African economies in order to increase economic self-reliance and promote an endogenous and self-sustained development;

$1·         To establish, on a continental scale, a framework for the development, mobilization and utilization of the human and material resources of Africa in order to achieve a self-reliant development.

$1·         To promote cooperation in all fields of human Endeavour in order to raise the standard of living of African peoples, and maintain and enhance economic stability, foster close and peaceful relations among Member States and contribute to the progress, development and the economic integration of  the continent, and

$1·         To coordinate and harmonize policies among existing and future economic communities in order to foster the gradual establishment of the community.

With the coming into force of the Abuja Treaty, the OAU committed itself with the realization of the aforementioned objectives and therefore it has to coexist with the AEC. The gradual operation of the OAU based on both its Charter and the Abuja Treaty made it clear that there is an emerging need to come up with an institution that would combine OAU’s political nature and the AEC’s economic character. At the same time, the end of the millennium led to a sense of urgency among African leadership to reposition the OAU in order to set the African continent as a whole on a firm path to development and peace in the new millennium. It was in this context that the forty four African leaders met in Libya from 8 to 9 September 1999 at an extraordinary summit of the OAU called by the Libyan leader Muammar Gaddafi, to discuss the formation of a ‘United States of Africa’. The summit basically aimed at ‘strengthening OAU’s capacity to enable it to meet the challenges of the new millennium.’ It was there that the African leaders adopted the Sirte Declaration which called for the establishment of The African Union.

Having been instructed to model it on the European Union and taking into account the Charter of the OAU and the Abuja Treaty Establishing the African Economic Community, the OAU legal unit drafted the Constitutive Act of the African Union. The resulting draft Constitutive Act was debated on a meeting of legal experts and parliamentarians and later at a ministerial conference held in Tripoli from 31 May to 2 June 2000.

The Constitutive Act of the African Union was adopted by the OAU assembly of Heads of States and Governments in Lome in July 2000. By March 2001, all members of the OAU had signed the Constitutive Act and hence the OAU Assembly at its 5th extraordinary summit held in Sirte, Libya, from 1 to 2 March 2001 declared the establishment of the African Union. However, to fulfill the legal requirements for the African Union, the Constitutive Act had to wait for ratification by two thirds of the member states of the OAU. It was on 26 April 2001 that this requirement was met. On 26 May 2001, the Constitute Act entered in to force and thereby making the African Union a legal and political reality.

All what has been stated above might be taken as evidencing the assertion that ‘the African Union was conceived and be made realty in the womb of the OAU.’ It is this fact that capitalizes the importance of studying the development within the OAU to give birth to the African Union.

As has been stated earlier, the theme is not an in-depth analysis of the activities of the OAU. Rather it is a bird’s eye view of the same targeting on the historical tracks that led to the emergence of the African Union.

Strengths and Weaknesses of the OAU

The strengths and weaknesses of the OAU can be considered as good historical lessons to the African Union. In this section attempts to highlight The major strengths and weakness of the OAU.

To begin with its strengths, decolonization is the most important achievement of the OAU, which has to be written in bold. Decolonization, like colonization, is a long drawn out historical process. In an attempt to assist the decolonization process, the OAU established a Coordinating Committee for the Liberation of Africa in 1963. This Committee offered moral and material assistance to anti-colonial struggles in different parts of the African continent.

In describing OAU’s role in the decolonization process, it seems more appropriate if we reiterate the wordings of the Durban Declaration in tribute to the OAU. Paragraphs 3 and 4 of the Declaration state:

The OAU was instrumental in creating an African Identity and in promoting solidarity among the African people. Today, being an African is not a philosophical proposition but a reality. Today, our people find expression in a common identify as Africans. That common identity and unity of purpose become a dynamic force at the service of the African people in the pursuit of the ideals are predecessors believed in and in which we continue to believe. No where has that dynamic force proved more decisive than in the African struggle for decolonization. Africa saw its independence as meaningless as long as a part of it remained under colonial tyranny. Immense human and material resources were consecrated to the task of decolonizing Africa. Through the OAU Coordinating Committee for Liberation, Africa worked and spoke as one with undivided determination in forging an international diplomatic consensus for liberation and in prosecuting the armed struggle.

Strength of the OAU, is perhaps closely related to its actions against racism and Apartheid. The OAU resolutions have ritually condemned racism in general as well as the system of apartheid which institutionalized racism in South Africa and Namibia in particular. The strategy of the OAU for the liberation of the South Africa, in particular, has been a mixture of support for freedom fighters and appeal to the conscience of the international community. In 1991, the apartheid policy was done away once and for all and maked the final step for Africa in the struggle of political emancipation form colonial and racist rule.

Another strength of the OAU that is worth being mentioned is its important task in coming up with the establishment of that formed Abuja Treaty the African Economic Community in 1991. The Treaty seeks to build the African Economic Community through a common market built on the regional economic communities. This effort of the OAU proved to be instrumental as regional   economic communities are today consolidating and proving today to be engines for integration.

The major weak OAU’s weaknesses, is its principles related to the culture of non-intervention for which the OAU has been criticized. Among the principles of the OAU, as stated in Article III of the OAU Charter, non-interference in the internal affairs of member states is one. The OAU is blamed for taking a “hands-off” approach to internal struggles in member states. Though there were rampant political instabilities within the territories of its member states, the OAU miserably failed in taking an action due to the culture of non intervention. Capitalizing on this  point, Timothy Murthi stated that ‘Indeed the OAU did not intervene as much as it should have in the affairs of member states to prevent war crimes and crimes against humanity which has bequeathed upon present generation of Africans the legacy of human rights atrocities and the domination, exploitation and manipulation of societies within states.”

Another weakness of the OAU is its failure to feature protection of Human Rights as one of its principal aspirations. This does not mean that Human Rights were wholly neglected by the OAU Charter since it makes references, albeit slight, to Human Rights. The principal objectives of the OAU have been to defend the sovereignty and territorial integrity of its member states. That may explain why it took 20 years for the OAU to adopt a Human Rights document proper.

The Rationale for the Establishment of the African Union

The rationale for the establishment of the African Union is not something that is alien to what has been stated hereinbefore. It is a cumulative effect of the urgency to rectify the downsides of the OAU and build a new paradigm of African integration and solidarity that can enable the continent as a whole to coup up with the challenges of the day.

It has to be recalled that the idea of African unity was there even before the realization of the OAU. Elaborating this point, Baimu stated that despite the creation of the OAU, some African leaders, particularly Kwame Nkrumah of Ghana, felt that Africans needed a stronger union than the one that had been realized in the OAU. Kwame Nkrumah is known for this famous speech that “Africans must unite or disintegrate individually”. In pursuance of this idea, he made an impassioned speech on the eve of the founding of the OAU, in which he argued for a union government of African states with a common market, currency, monetary zone, central bank, system of defense, citizenship, foreign policy and continental communication system.

The aforementioned proposal failed to be realized in those days. In fact, it evoked suspicion and animosity from a substantial number of African heads of state as they were jealous of their hard-fought independence and recently acquired presidential status for the sake of a continental union. Whatever the reason may be, the idea of African unity had to The wait for another period with comfortable economic and political factor propelling for its reality. This period began to come as of the 1980 due to multifaceted factors that urged Africa and Africans to come up with a firm integration and solidarity between and among themselves. Several reasons might be mentioned as pushing factors to African unity of which the major ones are discoursed below.

The first factor could be the fact that the challenges that Africa began to face as of the beginning of the 1980; were no longer the same as those of the 1963s. Eradicating colonialism and establishing the independence of African nations had been virtually completed except for the continued struggle in South Africa. The objectives and principles of the OAU were basically targeted at securing the process of decolonization. In the 1980s, this target became less important, if not totally not important, than it used to be when the OAU was founded. Hence, Africa is now in a state of a different scenario which demands a different solution from the one proposed by the OAU machinery. The OAU, as it has been stated in the preceding parts, deserves a credit in accomplishing its number one target. But, it has already become less important that paves the way for the creation of a new Pan-African body, the African Union.

The second pushing factor for the birth of the new African Union is the political global changes in the beginning of the 1990s That mainly characterized by the end of the cold war and the town fall of the Soviet bloc. This global change was not corroborated by a response form the side of Africa, despite the vital influence it had on the continent.  El-Ayouty, described this scenario by saying “With the end of the cold war, the world completely changed. Africa and the OAU, however, did not”.

The complete change in the global political order affected Africa in many ways. During the cold war, the two super powers, the USA and The USSR, were in a state of competition in most part of the world. They tried to assume leading roles in promoting their own ideologies and thereby assisted a country or a region which came to form a group within their spheres of influence. But the end of the cold war heralded the collapse of the USSR; the order of the game has begun to change.

While explaining the situation in Africa in his article entitled, ‘an OAU for the future: an assessment’, Yassin El-Ayouty said the following:

In the process of playing the friendship and cooperation game with either the East or West, Africa incurred the following hazards: It did not rely effectively on the OAU for conflict resolution; several of its states became pawns in the superpower chess games, the civil wars in Angola, Mozambique, Ethiopia, Sudan, Chad and the Sahara were allowed to go on without African solutions, the motto of “African Solutions for African problems” become a hollow slogan…

Thus end of the cold war posed a threat that was different from what it had used to be there during the cold war. The end of the cold war heralded the dawn of the new era of globalization in which Africa has become increasingly marginalized and struggled to define its place and role in the new global system. The challenge has now become different. Rather than playing El-Ayouty’s chess games  on African soil, the great powers increasingly declined to assume leading roles in promoting peace and development in the continent. This forced Africa and Africans to reconsider the slogan That had been used at the founding of the OAU i.e. “African solutions for African problems”, which sang truer than ever before and dictated more by necessity than inclination.

The Durban Declaration of the first ordinary session of the Assembly of the African Union shares the above sated pushing factor for the realization of the African Union. The Declaration states the following:-

[I]n 1990’s, when the world was undergoing fundamental changes with the collapse of the Soviet Union and the redefinition of the global power relations, the OAU moved quickly to assess African’s place in the new environment and charted a course for itself, aimed at stemming its marginalization and ensuring its continued strategic relevance and to address the challenges of development and of peace and security in the continent.

The global change forced Africa to strive for its continued relevance. To that end, an incumbent was created on Africa itself to consider a new political and economic order securing “African solutions for African problems”. The famous speech by Kwame Nkrumah that states “Africa must unite or disintegrate individually” became more relevant.

The third pushing factor for the establishment of the African Union that is worth being noted here is the economic situation that was getting worse and worse in Africa. This may be considered as a sign of Africa’s marginalization in the world order of the day. It has been commented that ‘the economic crisis in the continent has now become literally a matter of life and death and has to be dealt with. In response to the economic challenges, the OAU came up with the Abuja Treaty Establishing the African Economic Community in 1991. As it has been stated under 1.1.1, the coming into force of the Treaty suggested the emerging need to come up with an institution that would combine OAU’s political nature and AEC’s economic character. This paved the way for the realization of the African Union.

The final pushing factor that contributed to the coming into feature of the African Union was the in-built weaknesses of the OAU. As it has been stated above, Africa is was supposed to really implement the slogan “African solutions for African problems”. This, however, was not possible within the existing framework of the OAU. Experts agreed that the OAU charter needed revision, most specifically with regard to the principles of sovereignty and non-interference. These were among the basic principles of the OAU Charter and their contention was not a simple matter. However, Africa was in a state of necessity to enable the regional organization to take measures in internal affairs of member states. Explaining this dilemma, Thabo Mbeki, the then President of South Africa, said the following on 5 December 2003. “there is recognition of the absolute sovereignty of the African sates. In spite of the sovereignty, we must be our brother’s keeper and strive to end poverty in our continent. We must think for ourselves and not allow others think for us”.

Among other things, Africa was forced by the aforementioned factors to come up with a re-invented notion of Pan-Africanism which would not limit itself in defending the rights of African states against external interference but to devise a scheme not to let Africa continue as a safe heaven for undemocratic leaders who assume power by virtue of an unconstitutional manner. The order of the day demanded Africa to firmly get together than ever before and solve its problems by its own. All these led to the birth of a new form of Pan-African alliance through the African Union.