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WORKING GROUP ON THE AFRICAN UNION
11 March 2003
PROTOCOL RELATING TO THE ESTABLISHMENT OF THE PEACE AND SECURITY COUNCIL OF THE AFRICAN UNION
These minutes provided by Parliament staff.
Chairperson: Ms F Ginwala (ANC)
Cassim, M F
Jordan, Z L
Madasa, Z L
Makanda, W G
Apologies: Deputy Speaker, Mr B Geldenhuys, Mr J Sithole, Dr R Davies, Ms D Motubatse
Staff in attendance: Jenkins, F (Parliamentary Law Advice office); Xaso, M (NA Table); Mohlomi, N (NA Table).
Also in Attendance: Mr A Pahad: Deputy Minister of Foreign Affairs and Mr H Lambrecht: Parliamentary Officer, Department of Foreign Affairs.
The Speaker reported that the Peace and Security Council Protocol had been referred to different committees but only the Portfolio Committee on Foreign Affairs would report to the House. The other committees, however, would feed into the report to be presented to the House. She explained that the delay with regard to the referral of the Protocol to National Assembly committees was due to the fact that the Explanatory Memorandum had been outstanding.
2. Briefing by the Deputy Minister
The Deputy Minister mentioned that South Africa had been playing a primary role in trying to intervene in conflict situations on the continent. Without peace and stability, programmes for sustainable development would not be realized. The Peace and Security
Council was one of the important structures of the African Union aimed at ensuring peace and stability. South Africa, as the country holding the chairpersonship of the Union, had been mandated to lead the process leading to the establishment of the Council. The Protocol was signed during the AU/OAU Summit in Durban in July 2002. The Peace and Security Council would be a standing decision-making organ for the prevention and management of conflict. When the OAU organs were incorporated into the AU, the Lusaka Summit basically stated that the objectives and principles stipulated in the Cairo Declaration which established the mechanism for conflict prevention, management and resolution should constitute an integral part of the principles of the African Union. It was agreed to change the name of the Central Organ to Peace and Security Council. The functions of the Council would include early warning and preventative diplomacy, peace making and peace support operations. According to the Constitutive Act, its mandate will include the right to intervene in member states in respect of grave circumstances based on war crimes, genocide and crimes against humanity. It may also be requested by a member state to intervene to restore peace and security, to assist in peace building and post conflict construction. It must ensure the implementation of international conventions and treaties on arms control and disarmament. It may take action when the independence and security of a member state were threatened by acts of foreign aggression including mercenaries. The Council would have the ultimate role of taking decisions on issues relating to peace on the continent. Initially, there were attempts to have a permanent group of five states on the Council representing each African region. The majority of African countries, however, rejected this idea. It was finally decided that there would be fifteen members, ten to be elected for a two-year period and five countries, who would be considered as locomotives of the continent in terms of economic power and good governance, to hold membership for a three-year period. Any of these five countries could be reelected based on performance. Certain criteria require that these states should conform to standards of good governance. Their membership of the Council would be subject to periodic review. A peace fund to maintain national contingency in member states would be established. The Deputy Minister emphasized that the objectives of the Protocol were very broad but far reaching. It had been decided that all members of the Peace and Security Council must have representatives in Addis Ababa. Most importantly, the Ministers and Heads of state of the countries serving on the Council would have to meet at least once a year. The Permanent Representatives would be meeting as often as required, but at least twice a month. Member states would hold the chairpersonship of the Council in the alphabetical order of their names. A country would hold the chairpersonship for only one month. Decisions of the Council shall generally be guided by the principle of consensus. In cases where consensus could not be reached, the Council would adopt its decisions on procedural matters by a simple majority, while decisions on all other matters shall be made by a two-thirds majority vote of its members.
(a) Panel of the Wise
In terms of article 11 of the Protocol, a Panel of the Wise would be established. The Panel would be composed of five highly respected African personalities to be selected by the Chair of the Commission after consultations with the member states concerned on the basis of regional representation and appointed by the Assembly to serve for a period of three years. The Panel would advise on all issues pertaining to the promotion and maintenance of peace, security and stability in Africa. The Panel could take any action deemed appropriate to support the efforts of the Council. The modalities of how the Panel of the Wise would operate would be worked out by the Commission and approved by the Peace and Security Council.
(b) Early Warning System
The Deputy Minister stated that the other important element of the Protocol was the decision to set up a more effective continental Early-Warning System. This would need an observation-monitoring centre responsible for data collection and analysis on the basis of an appropriate early-warning indicators model. The Council would collaborate with the United Nations agencies and other relevant international organizations, academic institutions and NGOs to facilitate the effective functioning of the Early-Warning System. The intention was for the Early-Warning System to come into operation as soon as the Protocol got ratified by the appropriate number of countries.
(c) African Stand-by force
An African stand-by force would be established. The stand-by force would not be based in one particular country. Countries would have specialized components that are part of the stand-by force within their respective defence forces. The stand-by force would be ready for deployment as demanded by the Peace and Security Council. The stand-by force shall, where appropriate, cooperate with the United Nations and other relevant bodies. The Deputy Minister explained that the Protocol specifically stated that the stand-by force shall cooperate "where appropriate" because the experience had been that in the present Security Council of the UN, peacekeeping operations were run in terms of rules that were, in certain circumstances, outdated. As a result, the UN was unable to intervene in many countries even when it was necessary to do so. This has led to South Africa intervening in countries like Burundi without the framework provided by the UN. He explained that at present, for instance, the UN was unable to intervene in a situation where there was no absolute seize-fire.
He explained that the Council would have to consult with the regional mechanisms before intervening in areas of conflict. At the moment, the sub-regional groupings were responsible for intervening in conflict situations in their regions. Under the envisaged despensation, if any conflict took place in the SADC region, SADC would need to deal with it and make recommendations to the Peace and Security Council. The AU may, where appropriate, demand further intervention by the rest of the continent. The Council would need to work closely with the UN and, where necessary, approach the UN to provide the necessary financial, logistical and military support for the Council's activities in peacekeeping.
(d) The Pan-African Parliament
The Deputy Minister pointed out that article 18 (providing for the relationship of the Council with the Pan-African Parliament) was crucial in respect of Parliament. In terms of the Protocol, Council would whenever requested by the Pan-African Parliament submit reports to it in order to ensure that the Parliament was genuinely a participant in the processes of peacekeeping and post-conflict reconstruction. The AU Commission would present to the PAP an annual report on the state of peace and security on the continent. The Chairperson of the Commission shall also take all steps required to facilitate the exercise by the Pan-African Parliament of its powers as stipulated in article 11(5) of the PAP Protocol.
The Peace and Security Council would also seek close cooperation with the African Commission on Human and Peoples' Rights as well as non-governmental organizations, community based and other civil society organizations, particularly women's organizations. It was hoped that there would be greater participation by the non-governmental structures in the efforts to bring about peace and stability on the continent. Funding was likely to present a challenge. In this regard, a peace fund would come from the regular budget of the African Union as well as voluntary contributions by member states and other sources within Africa. Where necessary contributions would have to be accepted from sources outside of Africa.
The Deputy Minister appealed for the fast-tracking of the Protocol by Parliament in preparation for the AU Summit to be held in Maputo in mid-2003.
Dr Jordan indicated his support for the principles of the Protocol. He, however, expressed concern with the fact that Parliament did not have the powers to effect amendments to the Protocol. He intimated that funding remained a critical aspect as the Protocol was likely to remain just another piece of paper if there was no funding available for its implementation. He suggested that there was a need to get an indication of the level of commitment from the other African countries with the necessary capacity and clout. He pointed out that the when South African troops were deployed in Burundi, South Africa had to get funding for the entire operation from elsewhere.
The Speaker raised concern that there seemed to be a considerable shift in wording between the earlier draft and the current Protocol. The earlier draft reflected a broad definition of security, coming out of the Abuja Summit, which incorporated human security. However, when the Protocol came to the point of being signed by the Heads of state the process moved backwards. She indicated that there was reference to the earlier definition, but, by and large it was about security in the absence of war rather than the more holistic approach undertaken earlier. At the Millennium Summit, in the statement made by the Secretary-General of the UN, the holistic concept of human security was put forward as the biggest challenge of the 21st century.
The Deputy Minister replied that he did not think there was opposition to having a broad definition of the concept of security. The Protocol consistently made references to the interdependence between socio-economic development and security of peoples and states. On the issue of funding, he indicated that the reality was that many of the African countries did not have the capacity to make certain contributions. He said that the AU would have to use much of the UN Security Council resources, adding that South Africa's intervention in Burundi was funded by the European Union.
The Speaker asked whether it would not be better to initiate a staged-implementation process of the AU organs rather than creating Protocols that might not be implementable. She added that only 9 countries had so far signed the PAP Protocol. She further enquired whether it was not appropriate for Parliament to be kept involved in the drafting process of the Protocols. Parliament should be more involved in the actual debates than was the case. The Deputy Minister replied that he had been under the impression that before the experts' meetings, the relevant documents were circulated for comment by Parliamentarians. Mr Bapela suggested that the Protocol needed to be made gender sensitive. He also queried the practicality of a country holding the chairpersonship only for a month. The Deputy Minister mentioned that there was still a strong feeling in Africa on the concept of "small but equal". The proposal to have a structure with five permanent members was rejected by most countries. Similarly, the proposal for the chairpersonship to be longer than one month was rejected. Adv Madasa expressed concern that there seemed to be sufficient money for conflicts but not for peace. He suggested that the lack of money did not seem to be the problem. In his view, the problem seemed to be the outside countries that were funding conflicts in African countries. He said that the Protocol did not appear to deal with the political and economic problems that seemed to give rise to conflict situations. The sources of the problem were outside forces that had economic interests in most conflict-ridden countries. He suggested that the AU should find a way to get a commitment from the outside countries who were involved in conflict situations in Africa. The Deputy Minister expressed hope that the AU would manage to convince countries that go to war that they should rather use the money for correct purposes. Mr Cassim requested an explanation on plans by the Executive aimed at ensuring that the PAP Protocol process was kept in step with all the other developments.
The Deputy Minister explained that there was a decision to prioritise structures. Both the Peace and Security Council and the PAP were one of the priority structures. The Executive was committed to ensuring that the AU did not just set up structures but that the process moved in a staged-way. He expressed hope that the PAP process would move faster than was the case at present. He reported that the President had written to all the Heads of state asking for fast ratification of the Protocol. The SADC meeting on 10 March 2003 also had on its agenda the ratification of both the PAP and the Peace and Security Protocols. He suggested that Parliament should mobilize the African Parliaments to fast-track the ratification of the Protocols.
The Speaker stated that there was a recommendation at the AU Summit in July 2002 that the AU Commission set up a committee of Parliamentarians to facilitate the ratification of the PAP Protocol. However, there did not seem to be any efforts to push the Commission to set up the Committee. She indicated that only five SADC countries had ratified the PAP Protocol. Any intervention by the Peace and Security Council into another country should be tabled at the Pan-African Parliament.
The Speaker mentioned that a UN Trust Fund for human security had been set up. If the Peace and Security Protocol had a broader definition and incorporated things such as the links between development, peacekeeping and conflict resolution, it could access these funds. Mr Cassim requested an explanation regarding the location of the Early Warning System within the AU. The Speaker explained that physically the System was located at the AU headquarters, adding that the system, however, was not very effective. The Speaker raised the need to properly define conflict. Adv Madasa raised concern that the definition of conflict in the Protocol seemed to be focused only on genocides and wars. Mrs Mars commented that in terms of the objectives of the Protocol, the Council was meant to promote peace, security and stability in Africa. She suggested that this objective would enable the Council to be proactive in its operations. The Speaker explained that Parliament was not in a position to amend international instruments including the Protocol. The committees could create a context in terms of the report to the House with the hope that the South African government would try and promote the views expressed in the report.
The Chairpersons of the committees to which the Protocol had been referred to meet.
If necessary, a broader meeting of the affected committees to be considered (The Working Group was informed by the Official of the Dept of Foreign Affairs attending the meeting that a broader meeting had been scheduled for 26 March 2003).
The Deputy Minister to investigate and submit a report on the change of definition re concept of security.
The Deputy Minister to follow up and submit a report on the setting up of the committee of Parliamentarians to follow up on ratification of the PAP Protocol.
The Speaker to circulate preliminary draft papers from the Security Commission.
4. Pan-African Parliament
The Speaker reported that she was due to have a meeting with the Department of Foreign Affairs aimed at discussing the practicalities of hosting the Pan-African Parliament (eg. location and what was involved). Staff had compiled a detailed costing re hosting. She asked members to consider whether they wanted the Pan-African Parliament to be situated in Cape Town. In this regard consideration should also be given to the nature of provision needed for the Parliament to function. She, however, pointed out that the hosting of the PAP would ultimately be a political decision. In the first five years, the PAP would meet in different countries. This practice would assist in popularising the PAP. Mr Eglin suggested that, in a particular year, one session of the PAP should take place at the seat of the Parliament and another session in a different country.
The Speaker stated that initially the PAP might need to share facilities and staff with the South Africa Parliament. The Table and committee staff could be seconded. However, to share the National Assembly chamber may not be a viable option for the long term. The Speaker mentioned that Parliament was in the process of securing a section of the revenue building. A large committee room to accommodate 280 to 300 people was being considered in the revenue building. This facility could be used for various functions including seminars, conferences and public hearings. If it became necessary, the PAP could as a temporary measure be housed in the envisaged committee room.
Mr Bapela agreed that the secretarial support should be on the basis of secondment. The language issue within the PAP would need consideration. Mr Madasa suggested that the building for the PAP would need to be distinct from the South African Parliament Buildings. He suggested that Gauteng would provide an ideal venue, adding that Gauteng was easily accessible to most African nationals living in South Africa. Mr Eglin agreed that the PAP needed to be situated away from the South African Parliamentary buildings. Its location should not be dependant on the South African Parliament. The PAP should have it own personality. Mr Cassim replied that it would be pre-mature to establish facilities that could become under-utilised with time. It was important that in the initial stages available resources be used for this purpose rather than creating completely new and expensive facilities.
The Speaker explained that all senior staff serving in the PAP would be shared among different Parliaments. This was an established practice with multinational Parliamentary bodies. The idea of the revenue building was relevant for the first year of the PAP's existence. She indicated that the Working Group might need to table a report on some of the matters being discussed. She emphasized the point that the PAP cannot function in the shadow of the South African Parliament.
5. Two-day Seminar
The Speaker proposed that a two-day seminar to be attended by the countries that had ratified the PAP Protocol be convened (Namibia, Sudan, Mali, Rwanda, Malawi, Tanzania, Libya, Botswana and South Africa). The purpose of the seminar would be to discuss the ideas of the conception of the PAP.
The Speaker to compile a proposal on the two-day seminar.
All the countries that had ratified the PAP Protocol to be invited to the seminar.
The Speaker to write to the countries (Parliaments) that were said to have ratified the Protocol but did not appear on the list with the Department of Foreign Affairs. The purpose would be to seek clarity on their status re ratification.
The five African regional economic bodies to be invited to the seminar.
The above proposals to be included in the report of the Working Group to the House.
The Speaker to write to SADC countries that have not ratified the Protocol.
6. Aspects of the Protocol to be prioritised by the Working Group and raised at the broader meeting of committees dealing with the Protocol
(a) Early-Warning System
Issues to be raised include the link between lack of development, lack of human rights as well as lack of governance.
Need to consider the nature of indicators on good governance that Nepad had recently put in place. The ECA was also considering development indicators.
Need to introduce a system designed to prevent conflict, not necessarily following the "absence of violence" notion.
The Early Warning System should also take into account the "good governance" needs of society at a practical level.
The issue of the regional defence mechanisms could also be considered.
(b) Definition of Conflict
At which point should there be intervention and how should this intervention be approached?
(c) Regional Mechanisms
The SADC Defence mechanism could be considered as part of the current exercise of considering the Protocol.
The meeting adjourned at 12:30.
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