Seminar on African Union

Meeting report

WORKING GROUP ON AFRICAN UNION
2 March 2002
SEMINAR ON AFRICAN UNION

Chairperson: The Speaker

Documents handed out:
Power-point presentation by Dr Siphamandla Zondi
Protocol to Treaty establishing the African Economic Community relating to the Pan-African Parliament
The DTI: South Africa's global trade strategy and agenda: a brief note
Constitutive Act of the African Union
Draft Summary Report on AU Seminar

SUMMARY
The Chair of Africa Institute of South Africa spoke on civil society implications for African Union. He stressed the importance of obtaining input from civil society in the development of policy. Justice Portfolio Committee chairperson spoke on the legal implications of the AU Constitutive Act and pointed out several contradictions and disparities. Trade & Industry chairperson spoke on financial and economic implications of the AU and also highlighted a number of contradictions and challenges that South Africa would have to face, the most important being the need for regional integration so that capacity to trade would be increased. The Speaker spoke on Pan-African Parliament and stressed the need to ratify the protocol to parliament so that it could be established as soon as possible.

MINUTES
Dr Mandla Zondi - civil society implications
Dr Zondi from the Africa Institute of South Africa (AISA) stated at the end of the previous year, AISA had been asked to organise a number of workshops. The workshops had begun by focussing on what was thought to be the powers and functions of the main organs of the AU and other workshops had then been convened on other organs of the AU. An important question that had been raised concerned how the AU would enforce human rights and peacekeeping mechanisms.

Dr Zondi sketched the background to the AU [see Powerpoint version attached].. The AU was a new initiative as it was the brainchild of African leaders and not of African officials and therefore represented political will. Although the AU would be based on the European Union model, it incorporated African initiatives and experiences. In addition, it symbolised a commitment to involve ordinary people and civil society.

The Constitutive Act of the AU had a deliberately "loose" legal framework so that it would be open to input. However, this did not deny that the Charter was also riddled with gaps and contradictions too. An omission of the Charter was that it did not incorporate the African Charter of the Human and People's Rights, nor the Commission and Court related to it. The Charter in fact, provided for no human rights mechanisms although it did allow for protocols to be implemented in this regard.

The conflict resolution mechanism of the Charter was bold on promoting peace and stability but was silent on enforcement mechanisms. It was also irresolute on the enforcement of decisions, rulings and principles.

Discussion
The Speaker was of the opinion that a number of detailed discussions could arise out of this topic and that one of the challenges to be faced by the AU would be the multiplicity of organs that had been built up. This needed to be looked at sector by sector in the coming months.

A concern was raised regarding the establishment of the Pan-African Parliament (PAP). The AU appeared to be executive driven and the longer this situation continued, the less the inclination would be to get people involved. There was also a fear that the Assembly's meetings would be closed.

The Deputy Speaker added that the longer it took to establish the PAP, the greater would be the delay in ensuring the people's voice in the development of the AU. She also enquired as to the extent of civil society input in other member states.

Mr B L Geldenhuys (NNP) enquired if the AU would make an effort to obtain a commitment from the other member states to NEPAD.

An opposition member expressed the opinion that NEPAD was a plan of action that should be driven from outside the AU.

An opposition member questioned if there was a strategic plan for overcoming the exploitation of Africa by foreign companies. He suggested that what was needed in Africa was a common African language so that all African could understand each other. Furthermore, he asked if the Regional Economic Communities (REC's) would be important for the future of Africa.

Ms F Hajaig (ANC) enquired if any work was being done on the inter-relationship between the specialised committees of the AU and their regional counterparts, and how this relationship would operate.

Dr Moloka of the African Institute replied that the issue of harmonising the regional committees and the AU was being examined at the moment and that a report should be made available by May. On the question of NEPAD, he was of the view that taking NEPAD into the AU arena would result in its death.

An opposition member raised the issue of the African Central Bank proposal, which he thought to be too simplistic. A very important principle used during the establishment of the EU was to take the weakest economies and bring them up to standard with the bigger ones. This was done by the bigger economies subsidising the weaker ones. Was the AU envisaging doing the same thing? The situation in Africa is different because here we have many weak economies and only a few strong ones.

A member felt that the matter regarding the omission of the African Charter on Human and People's Rights was of grave concern.

Dr Zondi replied that the omission of the African Charter was a serious concern, but that in reality few African countries had actually adopted it. It had, for the most part, been signed at the OAU level but had failed to be implemented at national level.
The AU, unlike the EU, was not yet an economic union. It would also be misleading to say that the EU's economic plan is a successful one as that remains to be seen. There was however a strong argument for a compensatory mechanism. The Abuja Treaty had however envisaged an elimination of barriers to regional trade. The idea was to create more space for inter-regional and intra-regional trade.
On the relationship between the REC's, he said that these organs would have to have a serious form of relationship with decision-making bodies of the AU. Questions had been raised regarding whether PAP and ECOSSOC would be able to raise issues on the Assembly's agenda.
On the issue of public participation, he replied that should be the direction that the AU was moving in. The issue was still a loose and evolving one. In South Africa outreach programmes on the AU and NEPAD had been developed in close participation with other grass-roots civil society organisations such as the Human Rights Commission. There was still a passion for people participation and he was not pessimistic about the role they could play in developing policy. He was not sure about the national processes in other countries.

The Speaker invited Adv J De Lange, chairperson of the Justice Portfolio Committee, to give input on legal aspects concerning the AU.

Adv J De Lange - legal implications
Adv De Lange said that most of the issues he had intended to speak about had already been raised but there were still a few outstanding that concerned the legal implications of establishing the AU.

The establishment of the AU had been a rushed process and the AU document itself and the different protocols had been written by different people. This had led to contradictions amongst the documents. For example, the provisions relating to socio-economic issues contained contradictions between the different clauses, which was exacerbated by the fact that each could be interpreted differently. They also failed to mention who they would impact on a country's sovereignty. In particular, while one clause provided that the objectives should be implemented throughout Africa as a whole, another provided for regional structural implementation. The degree to which sovereignty is given up should also be looked at. It was important that these issues should be considered at this stage because if they were left for consideration until a later date, the framework as it exists now would provide the standards that they would need to meet.

There was also a lot of contradiction among the provisions relating to the operation of the executive. The effect was that procedures would have to be developed to regulate this and a report must also be made concerning its implications for sovereignty.

A further worry was the way in which the defence issues were drafted. According to principles of international law, a state may take action if in self-defence or by authorisation from a UN direction, although this approach appears to have softened recently. In terms of the AU Charter however, provides that action may be taken if agreed to by two thirds of the Assembly or if the country concerned agrees or in cases of genocide. This created the impression that the AU document was out of sync with international law.

Concerning the Court, he felt that it was a serious potential problem. The AU document says that the African Court would be the highest court of appeal while the South African Constitution provides that the Constitutional Court was the highest court of appeal. This was a clear contradiction and may require the Constitution to be amended. Furthermore, the African Court would have to make decisions in terms of the African Charter on Human and People's Rights, however that Charter was drafted a long time before the South African Constitution and the rights enshrined in it are not as progressive as those contained in the Bill of Rights.

On the issue of jurisdiction he said that it was highly improbable that one country would attack another country on the basis of a human rights issue. There was little in the jurisdiction clauses to allow for this in any case. This resulted in civil society organisations and NGO interaction being determined solely by the state concerned.

Regarding the central organ of the AU, he felt that it should have a place in the Act but that that should not be structured by the Assembly who could thereafter do with it as they pleased. Enforcement mechanisms appear to be driven by political will, which could be either good or bad. He suggested that MP's be able to play a more active role in the negotiation process.

The Deputy Speaker chaired the meeting and introduced Dr R H Davies, chairperson of the Trade and Industry Portfolio Committee, to give input on the financial and economic implications of the AU.

Dr R H Davies - financial and trade implications
Dr Davies stated that he would speak on issues and tensions of the AU as an economic integration policy. There was a long history for promoting a broad case for economic integration, but he would not go into that in detail. Tensions exist both in theory and in practise.

Economic integration could be likened to a ladder beginning with a free-trade agreement, moving towards a customs union, then a common market with free movement of labour and capital, followed by an economic union including the introduction of a monetary union, and then a macro-economic policy, finally culminating with a common foreign and security policy.
He would focus on tariff and other barriers that lead to the free movement of trade and other services.

The problem with Africa was that the majority of countries within it experience a common lack of development. They tend to produce raw materials that they all sell to the north. A major barrier was not that tariffs are too high, but that they lack adequate infrastructure. There was a need to follow a policy of development integration. It was important for the AU to address these barriers as priorities. The strategy would be to build on existing REC's, however, these all had different approaches in terms of regional integration. It was important to improve sectoral co-operation so that the capacity to trade would be increased.

Concerning financial institutions, the concept of a central bank indicated that there would be an eventual move towards a central currency. However, alternate approaches to this idea should be considered. The challenge at the moment was to define the approach towards economic integration that the AU should be setting in place.

Another challenge was that Africa's attempts to approach regional integration should not take place in a vacuum, but rather in the context of moving towards international integration. In this regard, two elements have to be taken into consideration. First the Cotonou Agreement, a trade agreement between African countries and the EU, which allowed African countries to gain access to the European market while in return making Africa a free-trade area for the EU. Secondly, an agreement with the US, which was in its second stage, and concerned reciprocal free trade agreements with selected African countries. The effect of these agreements might mean that South Africa would eventually find itself on worse trading terms with African countries outside our REC than countries such as the US and the EU.

The Deputy Speaker introduced the Speaker who would speak on the Pan-African Parliament.

The Speaker - Pan-African Parliament
The Speaker said she would focus on the question of the protocol to the PAP. The most important question regarded the treaty to which the protocol was attached. She had spoken to various people but was unable to find a decisive answer to the question. The question was an important one to answer because in order for the protocol to be adopted, it was necessary to know from which treaty it stemmed.

The status of the PAP was also unclear. The protocol states that the parliament exists but the Constituting document of the AU implies that the member states have to establish the parliament, although in terms of the Abuja Treaty.

The Composition of the parliament would include five people nominated from each national parliament, including one woman. Many parliaments on the continents consisted of only men and it was important for South Africa to take a strong position in this regard and not give credentials to any delegation that did not include a woman.

The question of the interaction between the parliament and the Assembly was also important and the new rules address this issue. It makes it clear that the PAP is one of the organs that report directly to the Assembly and that the president of the PAP attends the Assembly meetings. The Protocol provides that the president of the PAP is elected at the first meeting but for the session to come into being, an oath must be taken by the member, which has yet to be written.

The Speaker felt that all kinds of contradictions were apparent. It was important to ensure that the PAP has a life of its own independent of the Assembly and was able to set the dates of its own meetings. PAP's budget would form part of the budget of the AOU as it then was and the issue of its budgetary independence could be looked at later.

Right now it was most imperative to ratify the protocol and the issues regarding this needed to be resolved.

Specific Proposols:
1. Recommendation to the Minister of Foreign Affairs to table the protocol as soon as possible. Questions regarding this would be resolved after the tabling.
2. Presiding officers were requested to contact the SADC parliament to ensure that the SADC begins a similar process of ratifying the protocol. Also, to contact other regional parliaments with a view to obtaining early ratification of the protocol.

The Committee broke up into the following four commissions:

Political
Chair Mr Geldenhuys (NNP) reported that several political issues were considered, with consensus thereon as follows:
-"Political Integration" was a process necessary to empower African states to face the challenges of the time.
-The "Political Environment" to be cultivated in the AU should be not be "exclusionary" where potential member states whose actions may be objectionable was concerned, but "inclusionary" in order to enhance the chance of the AU being able to facilitate compliance with core principles. In this regard mechanisms were necessary to induce compliance, and steps should be taken to ensure formal integration of the existing African Human Rights Commission into AU structures.
-Concerning "sovereignty", Articles 4(a), (g) and (h) of the AU's Constitutive Act were determined not to be contradictory, but it was noted that 4(h) should refer to Article 3(h)'s recitation of "objectives" as grounds for intervention in the affairs of a member state.
-A protocol ratifying the Pan-African Parliament should be formulated, per Article 17 of the Constitutive Act.
-The Minister of Foreign Affairs should expedite steps to have a protocol approving the AU ratified by the SA and SADC parliaments which the other Commissions agreed with.

Social
Chaired by Mr Cassim (IFP), this Commission reported that the focus on social issues was on how it would link with other existing structures. In this regard, its major recommendation was planning for inauguration of the AU was for expedited formation of an ad hoc parliamentary committee to encourage public views on the AU (as part of a media assisted campaign to mobilize public awareness of, and support for, the AU), and coordinate activities concerning the AU with existing parliamentary committees. The ad hoc committee would also form subcommittees and task teams to focus on: certain areas in the social cluster; how NEPAD and the AU would relate; and how the AU would facilitate implementation of African Charter on Human Rights. It was recommended that the Pan-African Parliament's inaugural session be at least six months in order to properly launch the institution.

Regarding formation of an ad hoc committee, the Speaker noted that this needs to be carefully examined, with a focus on the role and capacity of existing committees in the process.

Economic
Mr McIntosh (DP) reported the Commission's findings that, in the economic realm, the AU should emphasise:
-Its facilitative role, rather than a regulatory one;
-Development and investment, rather than trade integration, with monetary union a long-term goal;
-Infrastructure development, both traditional and IT, with use of NEPAD as a complementary programme;
-Regional rather than continental cooperation, acknowledging that multi and bi-lateral development would continue;
-A "sectoral" focus, allowing growth in trade, the pace of which would vary from sector to sector.
It was also noted that movements of people as part of trade need to be considered, and that profound parliamentary and societal debate was necessary within South Africa on the nation's role in the AU.

Legal
Ms Chohan (ANC) reported the Commission's findings that:
-The AU Central Organ's focus on safety and security could have a broader ambit, and this body should learn from the experience with SADC security organ which had caused political problems.
-Contradictions within the Constitutive Act need to be re-examined such as "overlaps of authority" which it prescribed.
-It was necessary to clarify how various extant treaties work together, and to confirm current SA treaty obligations in order to ensure that new ones under the AU do not conflict.
-The African Charter on Human Rights needed to be looked at in the context of the AU, as do the AU's enforcement mechanisms and standards for the use of force.
-Meaningful quorum requirements were necessary as a check on the AU's exercise of power.
-Any "ceding of sovereignty" to the AU needs to be carefully considered and planned, taking care to ensure that existing rights of SA citizens were not affected.
-Class action litigation within AU judicial structures, per the Constitutive Act, could be problematic given most member states' lack of such legal mechanisms.
--Time frames for establishment of AU legal structures were needed; without these structures enforcement of AU action would be difficult.
-Language within AU documents needed to be checked for gender sensitivity.
-Public participation in considering the AU must be followed by Parliament, whose current working group should continue its activities, with further sub-groups to be formed to focus on specific issues.