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The African Union—A New Dawn for Africa?

Published online by Cambridge University Press:  17 January 2008

Konstantinos D. Magliveras  and
Gino J Naldi
Konstantinos D. Magliveras
Affiliation:
Visiting Assistant Professor of International Law, Aegean University, Greece
Gino J Naldi
Affiliation:
Senior Lecturer in Law, University of East Anglia
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Extract

In March 2001 the Assembly of Heads of State and Government of the Organisation of African Unity (OAU), meeting in extraordinary session in Sirte, Libya declared the establishment of a new pan-African body, the African Union (Union).1 The Constitutive Act (Act) of the Union entered into force on 26 May 20012 and in due course this new institution will replace the OAU.3 The Union, the brainchild of Libyan President Qaddafi, and modeled on the European Union, is the culmination of the OAU's piecemeal process of political cooperation and economic integration. It is designed to provide Africa with the legal and institutional framework to confront the twin challenges of the post-Cold War age and globalisation.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 51 , Issue 2 , April 2002 , pp. 415 - 425
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 EAHG/Dec.l(V). The Constitutive Act of the African Union is reproduced in (2000) 12 RADIC 629.

2 See Art 28 of the Act. At the time of writing fifty-one of the OAU's fifty-three Member States (except for the Democratic Republic of the Congo and Madagascar) have ratified the Constitutive Act.

3 Art 33(1) of the Act states, ‘This Act shall replace the Charter of the Organisation of African Unity. However, the Charter shall remain operative for a transitional period of one year or such further period as may be determined by the Assembly, following the entry into force of the Act, for the purpose of enabling the OAU/AEC to undertake the necessary measures regarding the devolution of its assets and liabilities to the Union.’ All OAU treaties are currently being reviewed with a view to their adoption by the Union, see Council of Ministers, 74th Ordinary Session CM/Dec 588 (LXXIV) (8 July 2001).

4 The OAU was endowed with legal personality by virtue of Article I of the General Convention on the Privileges and Immunities of the Organisation of African Unity 1965, 1000 UNTS 393, reproduced in Naldi, G, Documents of the Organisation of African Unity (Mansell, 1992), 38Google Scholar. Nevertheless, the Union appears to satisfy the test for international legal personality as set out by the International Court of Justice in the Reparations for Injuries Case (1949) ICJ Rep 174 at 179. The OAU Secretary-General has been authorized to undertake the necessary measures for the devolution of the OAU's assets and liabilities, see OAU Assembly, 37th Ordinary Session, AHG/Dec 160 (XXXVII), para 12 (11 July 2001).

5 See above n 3.

6 See Art 4(l)(d) of the Treaty Establishing the African Economic Community 1991, (1991) 30 ILM 1241, reproduced in Naldi, above n 4, 203. Generally, see Naldi, G and Magliveras, K, ‘The African Economic Community: Emancipation for African States or Yet Another Glorious Failure?’ (1999) 24 North Carolina Journal of International Law and Commercial Regulation 601.Google Scholar

7 See Art II (1) of the OAU Charter, 479 UNTS 39, reproduced in Naldi, above n 4, 3. For comment, see Naldi, , The Organization of African Unity: An Analysis of its Role, 2nd edn (Mansell, 1999), 4.Google Scholar

8 It should be observed that in 1981 the OAU adopted the African Charter on Human and Peoples' Rights, entered into force 1986, (1982) 21 ILM 58, reproduced in Naldi, above n 4, 109.

9 See further, below n 30.

10 See, inter alia, the principle of sovereign equality of all member States, peaceful resolution of disputes, non-intervention in the internal affairs of states, etc. For comment, see Naldi, above n 7, 5–14.

11 Note in this respect that there is an interrelation between the Union's objectives and principles; see Art 4(m) of the Act, which includes respect for democratic principles, human rights, the rule of law and good governance among the Union principles.

12 See the controversial judgment of the Supreme Court of Zimbabwe in Magaya v Magaya [1999] 3 LRC 35. But cf Attorney-General v Unity Dow [1992] LRC (Const) 623 (Botswana Court of Appeal). Currently, the OAU is formulating a draft protocol to the African Charter on Human and Peoples' Rights relating to the Rights of Women in Africa, see Council of Ministers, 74th Ordinary Session, CM/Dec 618 (LXXIV) (8 July 2001).

13 See Report by the UN Secretary General on the Question of the Death Penalty, UN Doc E/CN.4/1999/52.

14 See Naldi, above n 7, 29–33.

15 See Commercial Farmers Union v. Minister of Lands, Agriculture and Resettlement and Others 2001 (3) BCLR 197 (ZS). Not only has the order of the Supreme Court been ignored but the Chief Justice was coerced into resigning his post and other members of the judiciary have been threatened.

16 See Magliveras, K, Exclusion from Participation in International Organisations: The Law and Practice Behind Member States' Expulsion and Suspension of Membership (Kluwer Law International, 1999), 171–4.Google Scholar

17 See Magliveras, , The Adoption of Punitive Measures by the European Community and the European Union Against Recalcitrant Member States: Analysis, Criticism and Some Proposals, European Public Law Series, Volume VII (Bruylant, 1999).Google Scholar

18 The Action Programme was adopted during the Auckland Summit Meeting of Nov 1995, reproduced in [1996] The Round Table 123.

19 See Magliveras, above n 16, 168 et seq.

20 Art 4(g) of the Act. See also Art 3(b) of the Act.

21 Despite the OAU's emphasis on the principle of non-interference, in practice this rule has often gone unobserved in Africa, see Naldi, above n 7, 6–11. In fact, it is difficult to argue with the observation of then UN Secretary-General Boutros Boutros-Ghali that ‘the time of absolute and exclusive sovereignty’ has passed, Agenda for Peace, UN Doc S/24111 (17 June 1992), reproduced in (1992) 31ILM 953, para 17. It ought to be stressed that the African Commission on Human and Peoples' Rights has condemned military seizures of power, see, eg, Eighth Annual Activity Report, Resolution on the Human Rights Situation in Africa (1996) 3 IHRR 245–6.

22 Cf Art 58(1) of the African Charter on Human and Peoples' Rights, above n 8, which refers to ‘a series of serious or massive violations of human and peoples' rights’. In Organisation Mondiale Contre la Torture and the Association Internationale des Juristes Democrates and Others v Rwanda, Communication Nos 27/89, 46/91, 49/91, 99/93, (1999) 6 IHRR 816 the African Commission on Human and Peoples' Rights relied on this provision to find that the violence in Rwanda amounted to gross violations of human rights. See also, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Provisional Measures, Order of 1 July 2000, (2000) 39 ILM 1100, para 42, where the ICJ observed that it was not disputed that grave violations of human rights had occurred on the territory of the Democratic Republic of the Congo.

23 Genocide and crimes against humanity have been established by the International Criminal Tribunal for Rwanda, see The Prosecutor v Akayesu, Judgment of 2 Sept 1998, (1998) 37 ILM 1399, and The Prosecutor v Kambanda, Judgment of 4 Sept 1998, (1998) 37 ILM 1411.

24 Apart from the fact that intervention requires the prior decision of the Union Assembly, on which see below. It is interesting to note that the Act presupposes that intervention for humanitarian purposes is lawful, a debatable assumption.

25 See Arts 39–42 of the UN Charter.

26 This provision allows the existence of regional arrangements for dealing with the maintenance of peace and security in a manner appropriate for regional action, provided that they act in accordance with the Charter.

27 See Art 4(d) of the Act.

28 The intervention by ECOWAS in Liberia is particularly intriguing in this context because the Security Council retrospectively legitimised its operation under Chapter VII of the Charter, see Parsons, A, From Cold War to Hot Peace: UN Interventions, 1947–1995 (Penguin 1995), 215–19Google Scholar. See further, Kufuor, KO, ‘The Legality of the Intervention in the Liberian Civil War by the Economic Community of West African States’, (1993) 5 RADIC 525.Google Scholar

29 See Security Council Resolutions 794 (1992) and 837 (1993).

30 In accordance with Art 5(2) of the Act the OAU Assembly has incorporated the Mechanism for Conflict Prevention, Management and Resolution, mandated with the adoption of anticipatory and preventive measures to resolve disputes, as one of the Union organs, AHG/Dec 160 (XXXVII), para 8(a)(ii). The aims of the Mechanism for Conflict Prevention, Management, and Resolution, have been subsequently adopted by the OAU Assembly as an integral part of the objectives and principles of the Union, AHG/Dec 160 (XXXVII), para 8(a)(i). On the Mechanism, see further, Naldi, above n 7, 32–3.

31 See Art 9(2) of the Act.

32 See Naldi, above n 7, 2.

33 The OAU has usually operated by consensus, Naldi, above n 7, 19. Consensus is also required for reaching decisions in the supreme organ of the Common Market for Eastern and Southern Africa, the Authority; see Art 8(7) of the Treaty Establishing COMES A 1993, (1994) 33 ILM 1067.

34 See Art 10(1) of the Act. The Executive Council seems to correspond to the OAU's Council of Ministers.

35 See, respectively, Arts 13(2) and 12 of the Act.

36 Art 13 refers to the areas of, inter alia, energy, food and agriculture, environmental protection, transport, education, science and technology, etc.

37 Especially in the European Continent, where the Parliamentary Assembly functions in the Council of Europe, the European Parliament in the European Community, the Parliamentary Assembly in the Organization for Security and Cooperation in Europe, etc.

38 See, respectively, Arts 18(2), 19, and 17(2) of the Act.

39 The OAU Charter did envisage a quasi-judicial organ, the Commission of Mediation Conciliation and Arbitration which, however, never became operational. According to Article XIX, Member States pledged to settle all their disputes peacefully by referring them to that Commission, whose composition, functions and organisation was laid down in the Protocol of the Commission of Mediation Conciliation and Arbitration of 21 July 1964, (1964) 3 ILM 1116, reproduced in Naldi, above n 4, 32. See further, Naldi, above n 7, 24–9.

40 See Naldi and Magliveras, above n 6, 610–15.

41 Reproduced in (2000) 12 RADIC 187. Generally, see Naldi and Magliveras, ‘Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights’, (1998) 16 Netherlands Quarterly of Human Rights 431.

42 See Art 3(c) of the Act.

43 See Art 33(4) of the Act.

44 Although COREPER is expressly mentioned in Art 207(1) of the Consolidated Version of the Treaty Establishing the European Community, it is classified as an ‘auxiliary body’; see Case C-25/94 Commission v Council (Re FAO Agreement) [1996] ECR1–1469 at 1505.

45 A number of specialised technical committees are also envisaged under Art 14 of the Act, eg on Monetary and Financial Affairs, on Trade, Customs and Immigration, and on Health, Labour and Social Affairs. According to Art 15 of the Act their functions include the preparation, coordination and harmonisation of projects and programmes, and the supervision and evaluation of the implementation of decisions taken by Union organs.

46 See, respectively, Arts 3(a) and (j) of the Act.

47 See Art 23(1) of the Act. Note that the Act makes no provision relating to the budget with the exception of Art 9(1 )(f) stipulating that it shall be adopted by the Assembly. Cf Art 23 of the OAU Charter.

48 See Art 84 of the AEC Treaty, above n 6.

49 Signed on 24 July 1993; (1996) 35 ILM 660; (1996) 8 RADIC 187.

50 See Magliveras, , ‘African International Organisations: Suspension and Expulsion of Members’ [1999] Australian International Law Journal 158, 169–170.Google Scholar

51 Admittedly, the monitoring of the implementation of Union policies has been entrusted to the Assembly. However, the determination of non-compliance is a function completely different from monitoring.

52 There are currently fifteen land-locked countries in Africa.

53 See above nil and corresponding text.