Draft Report of Working Group

Meeting report

WORKING GROUP ON AFRICAN UNION
30 April 2002
DRAFT REPORT OF WORKING GROUP

Chairperson: Dr F Ginwala
Deputy Chairperson: Ms Baleka Mbete

Documents handed out:
Draft Report of the Working Group (See Appendix)

SUMMARY
The purpose of the meeting was to consider the draft report of the Working Group and agree on what needs to be tabled before the National Assembly regarding preparations for the July Summit of the African Union.

MINUTES
The Chairperson remarked there is a greater need to mobilize support from all African Parliamentarians for the African Union (AU) ahead of the July, 2002 Summit. She urged members to interact with the Draft Report and specifically look at Constitutive Act and the Recommendations contained therein.

The Deputy expressed concern at the ignorance amongst some African countries concerning the setting up of Pan African Parliament. She subsequently advised that awareness be created to ensure feasibility of establishing such a Parliament.

The Chairperson stated that only 35 African countries have ratified the Protocol to the African Union ahead of the Summit. She also reported that the Italian Speaker wrote to her and recommended a meeting of African Speakers and their European Union counterparts. This will assist in mobilizing support for New Partnership for Africa's Development (NEPAD) and African Union.

An organizational official asked which between the Department of Foreign Affairs, Parliament and Cabinet has authority to manage and coordinate activities of the AU.The Chairperson replied and said that though the Department of Foreign Affairs has to take a lead, nonetheless Parliament has to ratify all
International Agreements in order to be binding on the Cabinet.

The Chairperson proposed that a leadership forum be held before the July Summit. She said this would be similar forum to one called by Nigerian President O Obasanjo in 1989. Its aim is to facilitate the process of building African Parliaments.

The Chairperson expressed doubt about who should be invited, whether exclusively African Parliamentarians should attend the forum or include ordinary individuals. The Deputy said that at most Parliamentarians must participate in the forum, but individuals like Researchers, lawyers, economist etc, must be invited as observers. However, she cautioned that a "free for all" situation be avoided. The Chairperson added and said such forums must simply be consultative in nature and not make decision with binding effect.

Ms F Hajaij referred the meeting to Article 2 of Protocol to African Union and asked which mechanism would be used in the event of conflict arising between the Constitutive Act and the Abuja Treaty.

The Chairperson replied and said that a careful reading of the said Protocol revealed that in instances of conflict between the Abuja Treaty and Constitutive Act the latter would prevail.

The Deputy stated that there was high expectations that South Africa would assume a leading role in shaping the process towards formation of African Union. Therefore she requested the meeting to consider inviting other members of parliament to ensure support for budgetary allocations in the National Assembly for implementing programmes of NEPAD and AU.

The Chairperson pointed out that NEPAD Steering Committee has invited South Africa to sent comments and proposals on issues of Democracy, good governance and rule of law.

Ms Vilakazi (NCOP) asked how many countries thus far have ratified the Protocol to AU. The Chairperson replied that she would only know the number of signatories after her meeting the Secretary of Organisation of African Unity.

The Chairperson requested members of the Working Group to look at Constitutive Act and Recommendations contained in its report in order to make comments at their next meeting to be held on a date still to be announced.

The Committee agreed on meeting in Durban as a provisional venue for next meeting of the Working Group.

 

Appendix
Draft Report of the Working Group on the African Union
29 April 2002

1. Background

The Working Group was established on 16 November 2001 by a resolution of the National Assembly. The primary focus of the Working Group was to consider the implementation of the Constitutive Act of the African Union.

The brief of the Working Group is to:

Consider Parliament's participation in the implementation of the Constitutive Act of the African Union and suggest appropriate procedural mechanisms for this.

Determine the involvement of Parliament in assisting the South African government in its role as chair of the African Union.

The Working Group met on 15 January 2002, 14 February 2002, 27 February 2002 and 7 March 2002. The Working Group established a Planning Team to address detailed planning and technical matters. The Planning Team held its first meeting on 19 February 2002. The Working Group met with members of the Inter-Ministerial Committee on the African Union on 28 February 2002 to discuss the African Union.

A seminar on the African Union was held on 1 and 2 March 2002, in cooperation with the Africa Institute of South Africa and the Institute for Global Dialogue, Members of Parliament and representatives from the Departments of Foreign Affairs and Trade and Industry attended the seminar. The objectives of the seminar were to:

Acquaint Members with the African Union (AU).

Allow Members to engage with the challenges posed by the implementation of the Constitutive Act.

Encourage Members to consider the participation of Parliament in the process of shaping the evolution of the AU.

Discuss the role of South Africa in the implementation of the Constitutive Act.

Share knowledge and insight with the research institutes and Government Departments present.

South Africa will assume the Chair of the African Union in July 2002 and therefore will have to play an important leadership role.

2. Introduction

It has been argued that the first two decades after Africa's independence were dedicated to the fight against colonialism and poverty, and concerted efforts at nation building. These constituted the building blocks towards African solidarity. The development of the OAU is intrinsically linked to the ideology of Pan Africanism, as Africans realised their common descent and therefore their common destiny, common historical experiences, the opposition to slavery, racism, colonialism and the common notion of an African revival or renewal.

The African continent has been afflicted by wars, fragmentation, famine, HIV/AIDS and natural disasters. Furthermore, African leaders had to deal with the challenges of globalisation and the liberalisation of economies.

It is against this background and the resultant marginalisation of the African continent that the concept of an African renewal has emerged. In South Africa, the notion of revival and renewal was encapsulated in the idea of an African Renaissance.

The African Renaissance rests on the following principles:

Democracy, good governance and respect for human rights.

Peace and stability

Eradication of poverty and the development of Africa.

Cultural identity.

Global positioning - to improve Africa's position in relation to the rest of the world.

It has been proposed that the mechanisms to realise the African Rennaisance are the African Union, and NEPAD. Contingent on these mechanisms is the need for popular participation.

2.1. Toward African Unity

Phase 1: 1960 - early 1970's

The OAU was formed on 25 May 1963 in Addis Ababa. A compromise was reached between African leadership who were divided on the question of whether there should be a Unitary State or a Union of Independent States.

 

Phase 2: End of 1970's through the 1980's

The adoption of the Lagos Plan of Action in 1980 followed the Monrovia Declaration in 1979. It represented the first Plan for Africa's recovery and it affirmed the issue of regional integration as integral to the Pan African Agenda. The Lagos Plan of Action also articulated the principle of self-reliance. The Plan was to be implemented between 1980 to 2000. However, the success of the Lagos Plan of Action was impacted by the following:

The Cold War - The African continent was divided along ideological lines that were shaped by the Cold War politics at that time.

Structural Adjustment Programmes - These Programmes were imposed by the World Bank and the International Monetary Fund and prevented many African States from managing their own economies.

Post-colonial States - characterised by few democracies.

 

Phase 3: The Abuja Period (1990's )

The Abuja Treaty was adopted in 1991. The aim of the Treaty was to develop a regional integration strategy for Africa. The Treaty describes six detailed stages to be implemented over a period of 34 years up to 2035. The approach was based on the European model and the major debate was whether an economically driven integration strategy was appropriate for Africa, given the state of African economies. There was thus a need identified for a politically-driven integration. This need served as the impetus for the establishment of the AU.

3. The African Union (AU)

The African Union replaces the Organisation of African Unity (OAU). The African Heads of State confirmed the establishment of the African Union in March 2001, during the Extraordinary Summit of the Organisation of African Unity (OAU) in Sirte, Libya. South Africa became a signatory to the establishment of the AU on 23 April 2001, agreeing to the formation and the law establishing the African Union called the Constitutive Act of the African Union. In doing so, South Africa joined 35 other African countries as the founding members of the African Union. South Africa was not a founding member of the Organisation of African Unity (OAU) since apartheid policies excluded it from international affairs

The African Union will have the capacity to improve the economic, political and social development of the African people. It will also help ensure that the Continent is sufficiently able to address the challenges of the 21st Century and to develop Africa. On the 7 July 2002, South Africa will host the inaugural Summit of the African Union.

3.1. Similarities and differences between the OAU and the AU

The AU retains non-interference in State sovereignty, which was emphasised by the OAU. The AU however qualifies the issue of non-interference in Article 4(h). This article provides for the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances namely; war crimes, genocide and crimes against humanity. It is thus important that there be a common understanding of what constitutes war crimes, genocide and crimes against humantiy in order for the provision to be enacted.

Article 30 of the Constitutive Act provides that goverments that come to power through unconstitutional means shall not be allowed to participate in the activities of the Union. This provision of exclusion was not contained in the OAU Charter.

The focus of the OAU was on state security whilst the AU prioritises human security, which includes poverty, underdevelopment, political and socio-economic rights. This new concept of security epitomises the difference between the OAU and the AU.

The AU is based on principles of democracy, good governance, the rule of law and human rights. These principles were essentially absent from the OAU Charter.

Popular participation. The Constitutive Act in Article 22 specifically provides for the Economic, Social and Cultural Council (ECOSOCC), as the mechanism to foster popular participation of civil society in the African Union.

3.2. Strengths of the AU

The AU attempts to combine political and economic development in Africa. It has a strong political intent as well as an economic agenda. These processes must be complementary if the objectives of the Union are to be realised. The importance of self-reliance in both the economic and political spheres is emphasised. The New Partnership for Africa's Development (NEPAD) has been proposed as a concrete programme of action, while the AU could offer the overall institutional framework for achieving African unity. Some of the strengths of the AU inlude:

The AU is the brainchild of African leaders. There is thus a strong political will to ensure its success.

The mandate of the AU is expanded, as it reinforces the social, economic and political integration agenda of Africa.

The AU encompasses African experiences and inititatives (especially the Abuja Treaty).

The Constitutive Act of the AU is flexible and allows for input by various stakeholders.

The AU is committed to involving civil society through the ECOSOCC and the Pan African Parliament.

The AU seeks to foster solidarity among African countries and to streamline and restructure OAU activities to address the crisis of marginalisation.

3.3. The Constitutive Act

The Constitutive Act of the African Union replaces the Charter of the OAU. However, the Charter will remain operative from 11 July 2001 to 10 July 2002, until the African Union is in operation.

The Constitutive Act of the African Union specifies that the organs of the Union shall be:

(a) The Assembly of the Union (a structure of Heads of State)

(b) The Executive Council (Ministers of Foreign Affairs or other designated Ministers/authorities)

(c) The Pan African Parliament

(d) The Court of Justice

(e) The Commission (the Secretariat of the AU)

(f) The Permanent Representatives Committee (Permanent Representatives to the Union and other Plenipotentiaries of Member States)

(g) The Specialized Technical Committees

(h) The Economic, Social and Cultural Council

(i) The Financial Institutions

However, certain priority organs will be established before the inaugural Summit of the African Union. These are:

The Assembly of the Union

The Executive Council

The AU Commission

The Permanent Representatives Committee

These are essentially the same organs that currently exist under the OAU. However, their governance and administrative responsibilities will be considerably heavier, given the task of establishing and managing the other institutions envisaged by the Constitutive Act.

3.3.1. Gaps in the legal framework

The Constitutive Act of the AU is a legal framework that allows for revision and amendments by all stakeholders. Addressing the omissions in the Act would require discussions on amongst others, matters ranging from gender-sensitive language to substantive input on reinforcing peace mechanisms, and financial institutions.

Human Rights

The AU Constitutive Act does not make sufficient provision for the protection and enforcement of human rights. It lacks enforcement mechanisms such as a Human Rights Charter, Commission and Court. However, it may be argued that such mechanisms can be incorporated by means of a Protocol and/or negotiation.

Financial Institutions

The Constitutive Act of the AU provides for the following 3 financial institutions, namely the African Central Bank, the African Monetary Fund and the African Investment Bank. This multiplicity raises questions of financing, co-ordination, overlap and duplication. Consideration should be given to the integration of these institutions into an independent, multi-purpose Central Bank with a development, investment and fiscal mandate. This would require the harmonisation of financial and trade policies, the mobilisation of domestic human and capital resources and a uniform approach to, amongst others, foreign direct investment (FDI) and overseas development aid (ODA). It is important to note that FDI and ODA tend to be offerred where natural resources are abundant and not necessarily where the publicised political preconditions exist.

A prerequisite for the establishment of a Central Bank is the existence of national banks in participating countries. However, not many African countries have authentic national banks.

Conflict Resolution Mechanisms

Although the AU is bold on promoting peace and stability, the Act is silent on creating conflict resolution mechanisms, nor does it mention any relationship with existing resolution mechanisms.

Central Organ

As outlined in the Constitutive Act, the institutions of the African Union do not provide for a 'security council'. This reflects the position in the EU, within which armed conflict is unthinkable, and which delegates external security affairs to the OSCE and NATO. Given the importance of peace and security in Africa, it seems unlikely that the existing Conflict Management Centre at the OAU will be disbanded and the security functions of the Central Organ be discontinued.

This raises the question of how the AU will relate to the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA) and the New Partnership for Africa's Development (NEPAD), both of which have peace and security mandates at a regional level. To avoid competing or contradictory regional security authorities, it is important that there be a central 'African security council', whether located in the AU, CSSDCA or NEPAD, with ancillary, specific peace and security functions delegated to RECs and other regional security bodies.

Governance and democracy

Amongst the objectives of the AU is the promotion of good governance, democracy and human rights. Democratic decision-making is a complex task and some clarification of the principles will be required before structures are established and mandates given.

Where roles are not clear, mandate disputes between different bodies can lead to paralysis of the decision-making machinery. In the African context, the challenges are likely to arise in the area of liaison between the Pan African Parliament and national and sub regional parliaments, such as the recently established East African Parliament. In this respect it is important that the AU promotes existing regional organisations, such as the Inter-Parliamentary Union - Africa Region and the African Commission on Human and People's Rights.

Relationship with international organisations

Many key activities in the area of peace and security, as well as the sectors of development, planning, health, education and the environment, are increasingly addressed by international organisations. The UN specialised organisations such as UNDP, UNICEF, UNHCR, WHO and FAO are deeply engaged in African affairs, along with multilateral financial institutions such as the World Bank. These institutions have taken the lead developing poverty reduction strategies at national and regional levels. The AU will need to explore modalities for engaging with these international organisations.

Wider linkages within Africa

The OAU was established at a time when civil society organisations were weak, and were rarely regarded as legitimate role players. This has changed dramatically. Theory and practice of international relations today focuses on a multiplicity of role players and their respective contributions to building 'security communities', promoting economic integration and social and cultural exchange. The AU needs both a theory and practice of how to engage with these role players. This must include strategies to leverage a collaborative and meaningful association with relevant CBOs, private sector corporations, research institutes, foundations, universities, and other independent institutions.

3.4. Implementation

Some of the questions raised with regard to the organs and other provisions in the Constitutive Act in respect of implementation include:

Timing and sequence of the establishment of the institutions

It seems likely that the priority given to the respective organs will depend on what is seen as the overriding political concern. If the principal impetus is for regional economic cooperation and integration, then the Economic, Social and Cultural Council, the specialised committees and the financial institutions should be prioritised. If the first agenda is governance and democracy, then the parliament and court of justice should be established first. If the main concern is peace and security, then the existing organs should suffice, but will require a much more extensive engagement with existing problems and related institutions.

A related question is how the AU will relate to existing institutions and initiatives in these areas, including New Economic Partnership for African Development, the Regional Economic Commissions, African Development Bank and Economic Commission for Africa in the field of economic integration, the African Inter-Parliamentary Union, existing sub-regional parliaments and the African Commission on Human and People's Rights in the case of democracy and governance, and the Regional Economic Commissions, NEPAD and the UN Security Council in the case of peace and security.

Sequence of cooperation

The African Union is founded on a sharing of powers between states that have hitherto retained sovereign control over all aspects of decision-making. In reality, due to aid dependence and lack of resources, this sovereign control has often remained fictional, but governments have continued to claim their right to independent decision-making. Treaty obligations such as the commitment to an African Economic Union have rarely been implemented in full. There are reasons for this reluctance to share powers. It follows that 'softer' issues of cooperation, such as the environment, HIV/AIDS, and information and communication technology cooperation, should be prioritised, while 'harder' issues of establishing regional enforcement measures should be tackled when a higher degree of confidence has been built between states.

Resource requirements

The first issue here is, have the Commission and the other organs been costed? And to what extent can their tasks be shared with existing institutions in order to eliminate duplication and reduce costs? Second, it is evident that, under any scenario, the AU will be much more expensive than the OAU. Where will the resources come from? If these resources are to be primarily membership dues, how will the AU augment its resources in comparison with the OAU, which has always had chronic funding problems? Or will the AU be seeking other sources of funding?

Given that most African countries are highly dependent on concessional finance from OECD countries for their basic budgetary requirements, does it make sense for the AU to turn to these governments, or would it be advised to go directly to international aid partners for its financial needs? That in turn, however, has far-reaching political implications for the accountability of the Commission and other organs of the AU. It should be borne in mind that the viability and credibility of the AU will depend critically on its level of resourcing.

One challenge is the expert task of actually designing the institutions and the management systems required. What provisions are envisaged for seeking technical assistance in building the necessary institutions? Building a regional organisation is a complex task and there are relatively few experts on whom to draw. There is experience both within Africa at sub-regional level and outside Africa that can be utilised. The second challenge is the skilled staff required for managing the institutions themselves. This may require special training programmes to upgrade the skills of AU staff members.

The third challenge is selecting the individuals who will head the institutions, including the Secretary General and Commissioners. Special procedures for nominating and short-listing for these exceptionally demanding positions will be necessary. The candidates should be chosen on the basis of leadership skill and managerial capacity. In this respect, lessons can be learned from the UN and other international organisations. The AU must be able to attract and retain the very best. We must avoid the situation in which governments remove their least desired individuals to multilateral institutions, or merely pursue placing their people in posts in order to have a presence. Transparent criteria and standards will be required.

Changes in the structure and policies of member governments

An effective African Union will require substantial changes in the methods of working of member governments, placing additional burdens upon them at the same time as lessening their discretionary powers. Membership of the AU will entail sharing sovereignty in key areas of lawmaking as well as economic measures to lower tariffs and promote economic and financial convergence. There is a pressing need for detailed studies about the additional requirements on member governments

A basic issue underpinning all these considerations is that institution building has eluded Africa, at both national and regional levels. The history of building institutions in Africa has been disappointing. In designing the African Union and building the necessary institutions, it is necessary to review the record of building and sustaining the required governance capacities. The weakness of institutions has been a major impediment to the private sector and democracy. A general African standard for institution building has also been lacking.

The role of summits and the Executive Council

Major decisions about the AU architecture and capacities will be made in the existing OAU organs and their successors. The complexity of the issues to be resolved by the summits and council meetings will entail extensive preparation and briefings before these meetings, and perhaps changes in the structure of the meetings may be necessary to allow for technical committees to work in parallel and present their findings and recommendations to the heads of state and ministers.

Broader engagement

Up to now the AU process has been driven almost exclusively by governments. It is necessarily a sovereign process, but the experience of elsewhere indicates that success will depend upon broadening the ownership of the process, so as to engage others more fully. Public dialogue on the AU was initiated at the June 2001 OAU-CSO meeting, which included presentations and a question-and-answer session led by the former Secretary General and senior staff members. At Sirte in 2000 and subsequently at the 2001 Lusaka Summit, Africa's Heads of State and Government agreed that broader consultation was necessary. This raises the question, how are people to be engaged, sensitised and activated on a regular basis in the process of building the Union? One component of this is the engagement of the media to cover the activities and deliberations of the AU. Another would be regular consultative fora, both for general issues (along the lines of the 2001 OAU-CSO meeting, perhaps held annually before the summit) and for specific issues.

Democratising the process

The Constitutive Act invites Parliamentarians to take on a pivotal role in the architecture of the Union. One of the recurrent themes of regional organisations, including the EU, is that they suffer from a 'democratic deficit'—i.e. that the decision-making process at the regional level is less democratic than at the national level. If the AU were to follow this pattern it would be unfortunate, as some African countries do not score highly in terms of democratic freedoms and decision-making. Given that one of the aims of NEPAD is the promotion of democracy and good governance, it seems appropriate to construct an AU system that provides a 'democratic surplus'—i.e. the regional institutions and processes are more democratic, transparent and accountable than most national political processes.

Civil Society participation

The AU's commitment to the involvement of civil society is seen as an opportunity to generate and promote consciousness of African unity. This is clearly illustrated by the following:

The loose framework of the AU Constitutive Act provides ample opportunity for intensive consultation between the organisation and Member States and civil society on the rules of procedure, powers and functions of the Organs of the AU.

Member States must create the opportunity for national and regional consultative processes through workshops, submissions and inter-departmental initiatives.

Internationalising the process

The reality of Africa today is that it is integrated into a global order on unequal terms. The viability of African initiatives such as NEPAD and the AU depend critically on the extent to which they are able to obtain support from OECD countries, both in terms of agreement on the basic concepts, and in terms of resource provision.

The role of leadership, cooperation and sovereignty

Discussions have underlined the powerful political and economic interests and the overriding concerns with sovereignty operative within the African context. There are however powerful reasons why sovereignty should be pooled. If Africa speaks with one voice at an international level, it is able to gain consensus on issues of common concern such as the environment, international trade rules and HIV/AIDS drug prices. If African governments unite, they will become individually as well as collectively stronger and more prosperous. However, unlike in Europe and south-east Asia, the political constituencies and economic interests backing integration are relatively weak. This is related to the quality of governance and level of economic development.

The most democratic countries on the continent are the most enthusiastic supporters of integration, while the most powerful business interests (South African industry) are already actively promoting it by region wide investment strategies. These processes need to be boosted. The most important factor in this respect is leadership: Africa needs inspiring, consistent, high-level political leadership that repeatedly emphasises the imperative of unification, democracy, good governance and development.

 

5. Linkages between the AU and Regional Organizations

When the Organisation of African Unity was established almost four decades ago there were many fewer international and regional organisations, and their mandates and tasks were much more limited. In the intervening years, matters have changed substantially. Within Africa, a number of sub-regional organisations have developed in response to specific challenges. These regional organisations are considered important building blocks towards the creation of the African Union. At present there are five such key regional formations. These are:

(a) Arab Maghreb Union (AMU)

(b) Economic Community of West African States (ECOWAS)

(c) Common Market for Eastern and Southern Africa (COMESA)

(d) Southern African Development Community (SADC)

(e) Economic Community of Central African States (ECCAS)

AMU

The Arab Maghreb Union was formed in 1989. The Member States are Morocco, Algeria, Tunisia, Libya and Mauritania. The Union's primary objective is to promote co-operation and integration among the Arab States of North Africa. Its aim was to create a Customs Union by 1995, and a common market by 2000. One of its key objectives was to negotiate with the European Union on trade and other economic issues, but little was achieved. It has no defence mechanism.

ECOWAS

The Economic Community of West African States was formed in 1975 after signing of the Treaty of Lagos. There are 16 member countries. There are nine Francophone countries, two Portuguese-speaking countries and five Anglophone countries. In 1993 they resolved to create en economic and monetary union with common external tariffs. In 2001, they resolved to take steps towards the harmonisation of their legal system and to offer defence assistance to member countries. But they have shown limited ability to intervene as a community in conflict situations.

COMESA

The Common Market for Eastern and Southern Africa came into being in 1994. It has twenty member countries. It negotiated and adopted a good protocol on free trade zone and reduction of tariffs. Several members of the community are plagued by conflicts and wars.

SADC

The Southern African Development Community was established in 1980 as the Southern African Development Coordinating Community to lessen frontlines dependence on South Africa. In 1992, it resolved to become the Southern African Development Community with fourteen Member States. One of its primary objectives is to pave the way for macro-economic policy co-ordination, and to co-operate in economic and social development amongst Member States. SADC has made substantial strides towards integration, but some member states are plagued by conflict.

ECCAS

The Economic Community of Central African States was established in 1975, comprising 10 states, and encompasses all of Central Africa. It has a shared common currency and central bank. ECCAS included countries engaged in wars, and as a consequence, has produced negligible results.

For historical reasons, there is no structural relationship between the OAU and Regional Economic Communities. This has been problematic given the peace and security mandate of the OAU, alongside the fact that the principal responsibilities for enforcing peace and security have been assumed by the RECs. An immediate question is, what kind of interface is required between the AU and the RECs? Should this be several structures specific to the functions of RECs (e.g. one for peace and security, one for economic integration, etc) or is one single interface required?

A longer term, strategic question is, does the AU propose to integrate RECs into its structure or to cooperate with them? Will the RECs continue to exist as autonomous entities as the AU is established or is it envisaged that, over time, they will gradually be absorbed into the AU? If the 'integration' or absorption scenario is followed, how will this occur? If the 'cooperation' scenario is followed, which is the most realistic given the relative capacities of the organisations as they exist today. Mechanisms will be required to promote and monitor consistency between RECs' policies and their compatibility with the long-term aim of regional convergence.

6. Issues for Consideration

6.1. Political Considerations

Consideration should be given to such issues as what constitutes a conducive political environment, political integration, ceding sovereignty, and human rights.

(a) Political Environment

In the transition from the OAU to the AU, membership to the AU is open to all Member States of the OAU (Article 27). In the future, consideration should be given to whether to maintain this principle of inclusivity for Member States whose political environments are not conducive to the attainment of the objectives of the AU.

Mechanisms need to be developed to encourage Member States to create and maintain political environments that promote democracy and good governance.

(b) Political Integration

Political integration may be seen as a means through which African States are empowered to face their respective challenges. The AU can be perceived as an evolving structure responding to the challenges facing Africa.

There is a need to bridge historical and linguistic divisions in Africa in order to promote unity, solidarity, cohesion and cooperation among the peoples of Africa and African States.

 

(c) Ceding Sovereignty

The Constitutive Act provides for political and socio-economic integration and a common defence policy, which could impact on the sovereignty of States. Thus, the Constitutionality of ceding sovereignty with regard to these issues raises some concern.

South Africa should consider the principles and terms of ceding its sovereignty in a way that does not impact negatively on the human rights of its citizens. A phased and strategic approach would be necessary.

(d) Human Rights

In respect of human rights, it is necessary to consider an appropriate role for the Commission on Human and Peoples' Rights in relation to the AU.

With regard to the Charter on Peoples' and Human Rights, it is noted that there have been many developments in International Human Rights law, since the adoption of the Charter in 1987. South Africa should initiate a review of the Charter to establish congruence with current human rights law thereby ensuring the effective promotion and protection of human rights as envisaged under Article 3 of the Act.

6.2. Legislative Considerations

Some of the key legal considerations include the following:

Legal implications

Drafting and interpretation

The Court of Justice

The Central Organ

International Intervention

Organs of the AU

(a) Legal implications

Legal opinion received from the South African State Law Advisers indicates that the Constitutive Act of the AU does not conflict with domestic law. Further consideration should however be given to whether the Act is consistent with International law and South Africa's international obligations.

Whilst the Constitutive Act does not have any self-executing provisions, Member States may be obliged to harmonise existing; or enact new domestic laws in order to give legal effect to the provisions of the Constitutive Act.

South Africa may need to consider amending its Constitution to accomodate its obligations under the Constitutive Act.

(b) Drafting and interpretation

Attention must be paid to inconsistencies in the drafting of the Constitutive Act. The 'soft' legal drafting in Article 3(c), (l) and (n) compared to the definitive legal drafting in Article 9(a), for example creates some ambiguity and vagueness in the Act.

There appear to be no contradictions or ambiguity among Articles 4 (a), (g), and (h). Article 4(h) dealing with grounds for intervention by the Union in the affairs of Member States should take into account Article 3 (h) in respect of reference to the promotion and protection of human rights. The grounds for intervention should also be expanded to include violations of human and peoples' rights.

To facilitate democratic decision making, it is suggested that checks and balances be built into the Constitutive Act. In this light, the quorum for Assembly decisions should be re-examined particularly with regard to policy decisions and issues relating to ceding sovereignty.

The Act must be revised to reflect gender sensitive language.

(c) Court of Justice

It is suggested that the Protocol makes the Court of Justice the supreme institution for the protection of peoples and human rights. In terms of the South African Constitution however, the Constitutional Court is the supreme court protecting basic human rights. The consequences of deferring or referring matters to the Court of Justice will need to be considered.

With reference to Article 3(h), it is likely that the Court of Justice will make decisions based on the African Charter which may have become outdated in terms of human rights. The South African Constitution, being more recent, is more in line with international best practice in this regard. Also, the equality clauses in the African Charter and the South African Constitution are different. The Court of Justice will therefore function from a different legal basis. This may cause some tension. Mechanisms may be required to regulate issues that can be brought before the Court of Justice. Further discussion is required regarding the jurisdiction of the Court of Justice.

While South Africa has extended the right to class actions to organs of civil society in the interest of the public, many countries do not make a similar provision. Thus, if the Constitutive Act provides for class actions, some Member States would need to pass domestic laws to comply with their obligations in terms of this Act. Concerns were raised about the possibility of foreign NGO's funding class actions in different Member States to advance non-African agendas.

 

(d) Central Organ

It is envisaged that the Central Organ will be established through Article 9(1)(d). Since this represents an important organ, it should be established by the principal Act under Article 5 and not by the Assembly under Article 9. The relationship between the Central Organ and the Assembly of the AU should therefore be redefined.

The intended focus of the Central Organ is safety and security. This should be extended to include all matters of human security.

The relationship amongst the Central Organ, the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA), the Conflict Management Centre of the OAU and the UN needs clarification.

 

(e) International Intervention

Whilst the need for intervention as envisaged by the Act is acknowledged, it must be ensured that any form of intervention occurs within the parameters of public international law.

South African representatives to the AU should ensure that the AU does not adopt any provisions that will impact negatively on South Africa's international obligations. An audit of South Africa's international obligations is envisaged.

(f) Organs of the AU

Whilst the Act provides for the establishment of various organs, time frames for their establishment are not set. The lack of defined timeframes may impact negatively on the implementation of the Act.

The Act is also unclear regarding the separate powers and functions of the different organs. There is overlap in authority of some organs thus making it unclear which organs would have jurisdiction over what matters.

6.3. Economic Considerations

(a) General

The AU envisages accelerating efforts to promote economic integration in Africa. This raises the central issue of the appropriate strategy for promoting economic integration. The conventional trade integration approach focuses on removal of tariff and regulatory barriers and moving from Free Trade Area to Customs Union, common market and economic union. This approach has been criticised as inappropriate to developing countries and regions where major trade barriers often derive from underdeveloped production structures and inadequate infrastructure. Premature moves to "high" levels of trade integration e.g. a continent- wide customs union will therefore not necessarily contribute to addressing key challenges facing the continent.

Economic regeneration of Africa requires that priority be given to development integration, which is not solely focused on conventional trade integration. This implies combining efforts to promote trade integration with sectoral cooperation in key infrastructural and productive sectors. Addressing developmental backlogs therefore serves as the basis for promoting effective trade integration. This will also emphasise political cooperation at an earlier stage than in conventional trade integration programmes.

Tensions exist between these two paradigms, both in existing sub-regional programmes and in the Constitutive Act.

The terms of reference regarding the Economic, Social and Cultural Council (ECOSOC) in the African Union, its relationship with sub-regional economic bodies and the specialised technical committees needs to be clarified.

Economic integration, infrastructural development and sectoral

Cooperation

The case for a developmental approach to promoting economic integration in Africa arises from the reality that many of the major barriers to promoting intra-regional trade arise not from tariff and regulatory barriers but from underdeveloped production structures and inadequate infrastructure.

The integration strategy needs to build on what exists in sub-regions and should strive to improve sectoral cooperation as well as capacity building in sub-regional organisations. Developments such as the forthcoming Cotonou Economic Partnership negotiations will underscore the need to develop strategies for trade relations between sub-regions: options include a continental FTA or preferential agreements between sub-regions. The harmonization of protocols on objectives for investment should also be considered.

Infrastructural development like transport, telecommunications and information technology should be a priority. NEPAD can be considered an appropriate programme in this regard.

African countries have similar trade patterns based on exports of primary products to the North. Intra-African trade is therefore very limited. The European Union envisages reciprocal trade agreements between African regions and Northern trading blocs. These could lead to a situation where South Africa finds itself trading with African countries outside the SADC region on worse terms than e.g. the European Union. Hence, integration in Africa is not happening in a vacuum, there are developments at global level that are re-shaping the terrain.

It is also important to define the economic partnerships that will benefit Africa. Engaging institutions like the G7 in order to maximise the benefits of globalisation also needs to be addressed. It is therefore necessary to think strategically in order to face the challenge of globalisation.

The causes and consequences of cross-border migration, particularly of labour and goods, need to be addressed.

c) Monetary Union

Regarding the establishment of an African Central Bank, if this is read as meaning monetary union, this may not be feasible in the short term given that Africa has more than 50 different currencies with very unequal values.

The establishment of an African Central Bank should not attempt to prematurely promote monetary union.

While continent-wide monetary union is considered a legitimate long-term objective, this should not be seen as feasible in the short-term.

There must be co-operation with existing monetary union arrangements, such as that in West Africa and the common monetary area between South Africa, Lesotho, Swaziland and Namibia.

A focus on promoting cooperation between central banks similar to the Finance and Investment Sector Coordinating Unit of SADC could be a model for early activity.

6.4. Resource Considerations

The financial and human resource implications of the establishment and sustainability of the AU must be determined.

Detailed cost analyses for each organ of the AU, including infrastructure, personnel and operational costs should be developed.

Sources and sustainability of funding should be determined.

One of the main reasons for the financial constraints of the OAU is the inability of some member countries to pay their membership fees. This is largely due to the fact that member countries also hold membership of a number of other organisations, which require membership fees. Article 23 of the AU Constitutive Act aims to regulate this.

6.5. Pan African Parliament

To give effect to the provisions under Article 3(g) and 4(c) of the Constitutive Act, the establishment of the Pan-African Parliament should be prioritised. To this end, the Presiding Officers should engage the Executive to establish a role for African Parliaments in the African Summit in July 2002. Parliaments must determine the appropriate approaches and mechanisms to foster public awareness and engagement with issues concerning the establishment of the African Union and the implementation of the Constitutive Act.

In terms of the Protocol, the following should be considered:

Article 2 of the Protocol states that the Pan African Parliament is established by Member States. This may conflict with the provisions under Article 5 of the Constitutive Act and Article 7 of the Abuja Treaty, which establish the Pan African Parliament as one of the organs of the AU and of the OAU respectively. Article 5 of the Constitutive Act should be seen as the legal basis for the establishment of the Pan African Parliament.

In terms of Article 4, 5 Members at least 1 of who must be a woman shall represent each Member State in the Pan African Parliament. Compliance with this provision must be monitored since many African Parliaments are male dominated.

Under Article 5(2), the Assembly shall determine the beginning of the first term of office of the Pan African Parliament. This may impact on the independence of the Pan African Parliament since the Assembly may delay the first sitting if it is not in the best interest of the Assembly.

Notwithstanding the provisions under Article 33(2), consideration must be given to whether the Pan African Parliament Protocol should be ratified in terms of Article 7 of the Abuja Treaty or Article 17 of the Constitutive Act.

The Protocol should include a provision defining the relationship between the Pan African Parliament and national and regional Parliaments of Member States.

The following consideration is raised in terms of the Draft Rules of Procedure of the Assembly of the Union with regards to the Pan African Parliament:

Rule 19 refers to amongst others, attendance of the President of the Pan African Parliament at the sittings of the Assembly. The nature of participation of the President at such sittings must be clarified.

7. Recommendations

It is recommended that:

The Working Group should be mandated by the National Assembly to continue its work on the African Union and to establish support structures (sub-committees, technical teams, task teams etc.) as required.

Parliament should request that the Minister of Foreign Affairs table the Protocol on the Pan African Parliament for ratification as soon as possible.

The Presiding Officers should interact with other African Parliaments and Parliamentary formations, in particular the Southern African Development Community Parliamentary Forum in order to expedite the ratification of the Protocol.

Since the Constitutive Act of the AU provides for the participation of the African peoples and the Pan African Parliament in the activities of the Union, Parliament should engage the Executive to establish a role for African Parliaments in the Inaugural Summit of the African Union in July 2002. Discussions on the establishment of the Pan African Parliament including the Protocol should be prioritised.

South Africa should initiate a review of the Charter on Human and Peoples' Rights.

South Africa should develop proposals on the role of the Commission on Peoples' and Human Rights relative to the AU.

Parliament embarks on an audit of South Africa's international obligations in terms of public international law, through the relevant parliamentary committee(s).

Parliament proposes specific amendments and revisions of the Act for consideration by the Inter-Ministerial Committee on the AU and submission to the Commission under Article 32 of the Act.

South Africa supports and encourages a developmental approach to the political and socio-economic integration of Africa envisaged under Article 3 of the Constitutive Act of the AU.

Parliament identifies the appropriate mechanisms to facilitate improved interaction between Parliament and the Executive regarding the AU.

Parliament establishes strategies and mechanisms for effective engagement with civil society on matters relating to the AU.