Constitutive Act of the African Union

Meeting report

FOREIGN AFFAIRS, JUSTICE, FINANCE PORTFOLIO COMMITTEES; ECONOMIC AFFAIRS SELECT COMMITTEE: JOINT MEETING
14 February 2001
BRIEFING ON CONSTITUTIVE ACT OF AFRICAN UNION

Chairperson: E.I. Ebrahim

Documents handed out:
Explanatory Memorandum on the Constitutive Act of the African Union
Constitutive Act of the African Union
Legal Opinion by the Chief State Law Advisor, International Law

MINUTES
Mr W. Nhlapo, Deputy-Director General in the Chief Directorate of the African Affairs in the Ministry of Foreign Affairs gave a briefing on the current state of affairs regarding the constitutionality of the African Union. He said 33 member states of the OAU adopted the Act in July 2000 and that two months later President Mbeki signed the Act on behalf of South Africa.

Mr Nhlapo said that the launch of the AU is envisaged to be on March 2001 to take place at an Extraordinary Summit Meeting of the OAU in Sirte, Libya. He said the reason for creating the AU emerged at a meeting that was held in Algiers in 1999 where Muammar Gadaffi, raised issues on how best to tackle Africa's problems and challenges. Among the issues discussed was the creation of the Pan-African Parliament and the African Court of Justice.

Following from that meeting and the OAU Heads of State Summit that was held in Lome, Togo was the consultative meeting on the Pan-African Parliament, which South Africa hosted in November 2000 in Pretoria. Agreement reached in that consultative meeting was the role parliamentarians could play before the parliament can be established.

Mr Nhlapo said that certain issues have not been catered for in the Constitutive Act of the AU like conflicts on the continent. He said the Act did not ensure AU's effective response with regard to such matters and posed a question as to whether "do we have the kind of leadership to tackle such challenges?"

Besides the issue of conflict Mr Nhlapo said that 14 countries have not deposited their instruments of rectification and that there was also the issue of Morocco and the Saharawi Arab Democratic Republic, which posed a serious challenge for the continent.

On where the seat of these institutions should be located he said that it was agreed that the AU Headquarters should be based in Addis Ababa but that there was uncertainty as to where the Pan-African Parliament should be based. Libya was ready to host the PAP, he said but other countries felt that the most appropriate place would be South Africa and that they urged South Africa to come forward with the offer.

Mr Nhlapo said that that posed unnecessary problems pertaining to competition. He said many countries told South Africa not to stop at PAP but that South Africa should also host the African Court of Justice. He asked the implications for South Africa for hosting such institutions? "How does one exercise such leadership role?" he said.

He said there was also the position of the Secretary General. Does one retain him to drive the process of transition or should he be replaced? He asked.

Discussion
Mr Johnny de Lange (ANC) wanted some clarity on the Act and referred to certain sections of the Constitutive Act such as Article 3 ©, 3 (l), 9 (e), and 13 (a). He asked how does Mr Nhlapo interpret these words such as the Executive Council of the Union taking decisions on Foreign Trade and the harmonization of Regional Economic Communities?

Mr Nhlapo said that to resolve these issues one has to get into this process of African integration. He said that Colonel Gadaffi invited African scholars to dissect the OAU Charter, which he saw as outdated because the issues of foreign trade were taken from it. He said the Colonel saw that the landscape Africa was operating in was different from that when the Charter was written. However, no concrete decisions were taken in that meeting but then the process is still going on.

On the issue of Regional Economic Groupings he said that the AU views them as building blocks. Yet within these groupings themselves there was lack of cohesiveness. He made an example with Maghreb Arab Union where the grouping was a non-starter because Egypt, which was supposed to be a leading country in that grouping, was not part of it. Instead it was a member of Comesa (Community for Eastern and Southern African States). And ECCAS (Economic Community for Central African States) where the DRC (Democratic Republic of Congo) was a member and at the center of the continent, was in turmoil due to conflicts raging in that area. The East African Community made up of Tanzania, Kenya and Uganda, was in no better situation. Then there was the East African Region comprised of Ethiopia, Eritrea, Somalia, Djibouti, Uganda, Sudan, and Kenya. How do you harmonise with these countries given such contradictions? Mr Nhlapo asked. The reality is that you have to deal with them, Mr Nhlapo told members of the Committees.

Mr Nhlapo went on to say that as a continent how do you engage the WTO? Comesa claims to be a free trade zone but in reality there was no free trade in that area, he said. Not to forget the SACU/SADC relationship. What do we do as a continent to develop a Common Trade Policy? He asked. He thought the challenge lies with the leadership, which has to bite the bullet and confront the situation with a clear understanding. He said that the rules of the game lay with protocol.

Dr. Delport (DP) asked Mr Nhlapo from a legal point of view what forum will be used to deal with these situations. How will it function? He wanted to know. Is the framework sufficient to allow it to work? He asked. What powers and jurisdiction will it have?

Mr Nhlapo responded in a question form. "How do you develop the protocol?" he asked and answered by saying that the Pan-African Parliament has guidelines of what needs to happen. He added that to tackle such issues will depend on the level of the maturity of the continent and the process of democratization in individual states and collectively. He made an example with Lesotho where election monitors agreed that the elections were free and fair but then soon afterwards a dispute erupted because some people claimed that the electoral system there was flawed. He said the same situation was happening in Zanzibar, Zambia and Ivory Coast were challenges to free electoral system were crucial.

An IFP member wanted to know how does one interfere in another country when Article 4 (g) talks about non-interference of another country in the internal affairs of another?

Mr Nhlapo responded by mentioning the 14 countries that have not deposited their instruments rectifying the Act to answer this question. He named them as follows: DRC, Republic of Congo, Guinea, Mauritania, Ivory Coast, Swaziland, Angola, Botswana, Zimbabwe, Kenya, Mauritius, Eritrea, Cameroon, and Morocco. He said all these countries were embroiled in some conflict of some sort one way or another except for Botswana. He said that Botswana was not convinced the stage has been reached where the continent could work in the same direction. South Africa signed later, Mr Nhlapo added. On the title of sovereignty and non-interference, Mr Nhlapo said that there was clamour for credibility. The example he gave was on electoral monitoring. When in trouble, these countries run to the OAU or sub regional groupings such as Lesotho which approached SADC but mandated the organization how to help it. Ivory Coast asked the Committee of Ten which South Africa was part of it. Mr Nhlapo said that the current Chairperson of the OAU who represents the worst kind of leadership in the continent because he came through a coup and had no moral integrity led this Committee. He said that next in line for the Chairmanship of the OAU is Zambia and President Chiluba was changing that country's constitution to inherit that position. What is he going to do as a leader of such an institution? He asked.

Mr Eglin (DA) said that regional establishments should be used as stepping-stones for the continent's integration. He said that SADC was the most cohesive unit on the continent but still hasn't got it correct yet. He said that Europe started with six countries and other countries that wanted to join it had to subscribe to its basic policies and principles.

Mr Nhlapo said that the introduction of the DRC into SADC exposed the region's weaknesses. He said that Europe was not perfect even though it had lesser members than Africa. He said that decisions at EU rested with three countries, namely, Britain, France and Germany. Without these countries consenting nothing happens, he said.

An ANC member said that the continent was at different levels of consciousness and that there are many impediments to be overcome to attain the continent's objectives but that "we must not be weakened!" He said that there are two kinds of impediments in the continent: within Africa itself and those that were engineered outside the continent. He said he felt that protocols were an organic growth. We will err because we are doing it, he said. There were many impediments that faced Europe, he said, but it didn't stop.

Mr Nhlapo agreed with the last speaker and pointed out that there were serious differences existing in Europe's common trade policy such as the Common Agricultural Policy (CAP). "We have to be informed by practical realities," Mr Nhlapo said.

Mr Johnny de Lange suggested that the meeting be adjourned and be convened for next Tuesday.

The Chairperson adjourned the meeting.