Department on Protocol Relating to Peace and Security Council of the African Union: briefing

FOREIGN AFFAIRS PORTFOLIO COMMITTEE AND WORKING GROUP ON AFRICAN UNION: JOINT MEETING
26 March 2003
PROTOCOL RELATING TO PEACE AND SECURITY COUNCIL OF THE AFRICAN UNION: BRIEFING BY FOREIGN AFFAIRS MINISTER

Chairperson: Dr P. Jordan (ANC)

Relevant Document:
Ratification of Protocol Relating to the Establishment of Peace and Security Council of African Union (Appendix)

SUMMARY
The Minister of Foreign Affairs briefed the Committee on the background to the development of the protocol. Concerns were raised around the process of the legislative process, as well as clarification of the mechanisms and duties of the Peace and Security Council of the African Union.

MINUTES
Dr Dlamini-Zuma, Minister of Foreign Affairs,gave a brief background to the Peace and Security Council of the African Union (PSCAU). It had come into being due to the ineffectiveness of the Central Organ of the Organisation of African Union (OAU) in dealing with both conflict and humanitarian crises. The major shortcoming was the fact that unlike the PSCAU, the Central Organ was not a permanent body, and only dealt with matters on an ad hoc basis, making their reaction time extremely slow. By contrast the PSCAU's mandate was to look for signs of a crisis developing even before it had taken root.

Dr Dlamini-Zuma stated that the PSCAU did not claim precedence over the UNSC, but would operate as a regional body. The need for a regional body was even more pressing as a result of the UNSC's manifest tardiness relating to matters of African security.

Discussion
Concern was expressed over the level of consensus reached by member states concerning the establishment of the PSCAU. Dr Dlamini-Zuma assured members that heads of state of the members had agreed, unanimously, to adopt the protocol. Only some parliaments, including South Africa's, had ratified the protocol to date.

Ms Olckers (NNP) asked the minister if any of the eleven countries which had not yet ratified the protocol had expressed any unwillingness to do so, and if so, whether they had explained their reasons for this.

Dr Dlamini-Zuma, replied that any another African parliament could well be asking this question with South Africa in mind at that very moment. However, that she was certain that all the parliaments concerned were simply following their own democratic process. She had not, as yet, received any indication that any member was unwilling to go ahead with the protocol. Only a two-thirds majority was required to go ahead in any case.

A representative of the Justice Committee drew the meeting's attention to the numerous drafting errors in the document. She asked whether these mistakes could be altered, given that President Mbeki, and others, had already signed the document.

Dr Zuma assured those present that the mistakes were not significant and they could be corrected later. Given the time pressure to ratify the protocol, these matters could not be attended to until later.

Ms. F. Mahomed (ANC) stated her opinion that the UN had failed in the recent developments over Iraq. How would members of the PSCAU ensure they did not do the same?

Dr Dlamini-Zuma stated that the UN had not failed in Iraq, and had in fact averted a conflict of potentially larger proportions. The mandate of the UN, laid down in its key principles, to prevent a world war and had therefore done its job.

Ms. F. Haijaj (ANC) asked why only 28 of 53 African states had joined the AU.

Dr Zuma said that it was possible that the substantial commitments in terms of human resources and finances, required of member states, could be prohibitive to some African states. Some African parliaments worked on a system whereby the Executive could only sign a document after being accepted by parliament. The AU was still awaiting signatures from such countries.

A question was raised over the obligation of states, who had not signed the protocol, to fall in line with the AU's policy.

Dr Zuma stated it was unavoidable for any African to be part of it at least indirectly. She corrected an earlier statement at this point, saying that only a simple majority was required to establish the PSCAU.

A question raised concerned the criteria for inclusion in the PSCAU. He asked if a state had to meet all eight criteria to be considered for inclusion. Dr Zuma replied that each state was taken as a whole in terms of the selection criteria - that a state could fail to meet one requirement yet still be considered eligible.

Mr Eglin further asked for details regarding the costs of setting up the PSCAU.

Dr Zuma stated that no accurate figures were available, yet it was thought that it would cost significantly more than the OAU, largely due to the increased duties and responsibilities of the PSCAU. She emphasised that the benefits outweighed the costs, given the dire need Africa had of a body of this kind.

Dr Jordan urged the committees who had not already done so to familiarise themselves fully with the document as soon as possible.

The meeting was adjourned.

Appendix
EXPLANATORY MEMORUNDUM

Ratification of the Protocol Re1ating to the Establishment of the Peace and Security
Council of the African Union

1. SUMMARY

1 1 A submission is made to Parliament to request that approval be given for South
Africa to ratify the Protocol Relating to the Establishment of the Peace and
Security Council of the African Union ("the Protocol") in accordance with section
231(2) of the Constitution of the Republic of South Africa 1996 (Act No.108 of
1996).

1.2 South Africa signed the Protocol Relating to the Establishment of the Peace and Security Council of the African Union during the OAU/AU Summit held in Durban.

1.3 The Protocol envisages the establishment of a Peace and Security Council, which will be a standing decision-making organ for the prevention, management, and resolution of conflicts. It will be a collective security and early warning arrangement to facilitate timely and efficient responses to conflict and crisis in Africa.

1.4 It is recommended that South Africa ratifies the Protocol Relating to the Establishment of the Peace and Security Council of the African Union.

1.5 South Africa should ratify the Protocol as soon as possible in order to encourage other Member States of the African Union to do so and ensure that when the Protocol comes into force the PSC structures are in place.

2.BACKGROUND

2.1 The Protocol envisages the establishment of a Peace and Security Council, which will be a standing decision-making organ for the prevention, management. and resolution of conflicts. A copy of the Protocol is attached as Annexure.

2.2 On the incorporation of the OAU organs into the AU, the Lusaka Decision (AHG/DEC. 1 (XXXV11) 8(a)) states that the objectives and principles stipulated in the Cairo Declaration establishing a Mechanism for Conflict Prevention. Management and Resolution (Central Organ) constitute an integral part of the declared objectives and principles of the African Union. It further decides to incorporate the Central Organ of the Mechanism for Conflict Prevention. Management and Resolution as one of the Organs of the African Union in accordance with article 5 (2) of the Constitutive Act of the African Union and conform to standards of good governance in terms of political, economic and corporate governance. Membership will be subject to periodic review.

2.2 Member states will also have to contribute to a type of Peace Fund, which will partly be used to maintain national contingents, in member states' national defence forces, which together will form the continent's peacekeeping force. The equipping of these forces will have to be considered.

It was noted that membership would be an issue of responsibility and not benefit.

3. OBJECTIVES

3.1 The objectives for which the Peace and Security Council is established shall be to:
a. Promote peace, security and stability in Africa, in order to guarantee the protection and preservation of life and property, the well-being of the African people and their environment, as well as the creation of conditions conducive to sustainable development;
b.Anticipate and prevent conflicts. In circumstances where conflicts have occurred, the Peace and Security Council shall have the responsibility to undertake peace-making and peace-building functions for the resolution of these conflicts;

c.Promote and implement peace-building and post-conflict reconstruction activities to consolidate peace and prevent the resurgence of violence;

d.Co-ordinate and harmonize continental efforts in the prevention and combating of international terrorism in all its aspects;

e. Develop a common defence policy for the Union, in accordance with article 4(d) of the Constitutive Act;

f.Promote and encourage democratic practices, good governance and the rule of law, protect human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law, as part of efforts for preventing conflicts.

4.IMPLICATIONS

4.1 ORGANISATIONAL AND PERSO~'NEL IMPLICATIONS

Following authorisation by the PSC or the Assembly and upon a request by the Commission, Member States shall release stand-by contingents with the necessary equipment for operations as envisaged under Article 13 (3) of the Protocol.

Letter from Senior Law Advisor
Office of Chief Law Advisor (International Law)
Department of Foreign Affairs

Mr TB Ceke

PROTOCOL RELATING TO THE ESTABLISHMENT OF THE PLACE AND SECURITY COUNCIL OF THE AFRICAN UNION

1.Your request for a legal opinion of 6 September 2002 bears reference.

2.The Law Advisers have studied the draft "Protocol Relating to the Establishment of the Peace and Security Council of the African Union". We find the draft Protocol in line with international law and South Africa's international obligations, but wish to propose a number of grammatical corrections to the text, bearing in mind that the text was the final one provided by the African Union. If the Desk agrees, it may wish to bring the proposed amendments/ corrections to the attention of the AU Secretariat. The proposed corrections have also been indicated in ink directly on the text:

2.1AdPreamble

Paragraph on page 1 beginning with "RECALLING", seventh line: Change "the" to "this", to read as follows "..of the African Union, and, in this regard, requested

Paragraph on page 2 beginning with "REAFFIRMING", second line: change "on" to "of', to read "Solemn Declaration AHG/Decl.4 XXXVI) of the Conference...); in the last line remove the comma after "2001".

2.2 Ad Article4(h)

Insert the definitive article "the" before "inalienable right".

2.3 Ad Article 7(l)(l)

Within the context of the sentence, especially as the plural form "policies" is used, it appears that "action" must also be pluralised to "actions".

2.4Ad Article 7(l)(n)

It is not necessary to write "conventions" and "treaties" with capitals.

2 16Add article 16(3)

Add the definitive article "the" before "Peace and Security Council" at the end of the first sentence.

2 17Ad Article 16(6)

The last part of the sentence is not clearly formulated and the meaning thereof is not clearly expressed. It appears from the context that the idea is to create the opportunity for Regional Mechanisms with a special interest in a question being addressed before the PSC to be invited to attend such a session. If this is indeed the intended meaning, it is proposed that the sub-Article be amended to read as follows:

"Regional Mechanisms shall be invited to participate in the discussion of any question brought before the Peace and Security Council whenever such question is of special interest to a particular Regional Organisation".

2.18 Ad Article 18(1):

"Mechanism" in the first line must be "Peace and Security Council".

2.19Ad Article 21(6) and 21(7):

"States" in both the sub-Articles must be preceded by "Member" in order to ensure consistency throughout the text.

2.20 Ad Article 22(4):

The substance of this sub-Article is repeated in sub-Article 21(7), and it can therefore be deleted.

3.It has also been noticed that while "Member States" have been defined in Article 1, "Members" (of the Peace and Security Council) have not been defined.

ANDRE STEMMET SENIOR STATE LAW ADVISER(IL)

PRETORIA
16 SEPTEMBER 2002