Constitutive Act of African Union and other treaties: Deliberations

This premium content has been made freely available

Justice and Correctional Services

20 February 2001
Share this page:

Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
21 February 2001
CONSTITUTIVE ACT OF THE AFRICAN UNION AND OTHER TREATIES: DELIBERATIONS

Chairperson: Adv JH de Lange

Documents handed out:
Committee Report on the Designation of Ireland (Appendix 1)
Legal Opinion from Department of Foreign Affairs (Appendix 3)
Legal Opinion form the Department of Trade and Industry (Appendix 5)
Draft Committee Report on Constitutive Act of the African Union (Appendix 6)
Justice Budget Vote and Adjustment Estimates - 2000/2001
Article by ANC on the Special Investigating Unit
Constitutive Act of the African Union
Explanatory Memorandum: Designation of Ireland (Appendix 2)
Explanatory Memorandum: Ratification of International Covenant on Civil and Political Rights (Appendix 4)

SUMMARY
The State Law Advisor provided feedback on the questions that were raised by the Committee at the previous meeting. The Committee discussed the powers of the Human Rights Commission. The purpose of the Protocol on the Establishment of the African Court on Human and Peoples' Rights was discussed and distinguished from that of the Human Rights Committee (established by the International Covenant on Civil and Political rights).

MINUTES
Constitutive Act of the African Union
The Chairperson of the Foreign Affairs Portfolio Committee stated that the Law Advisors from the Department of Trade and Industry could not be present at the hearing. However, they had sent a written legal opinion to the Committee. Consequently the Justice, Foreign Affairs, Finance Joint Committee draft report on the Constitutive Act of the African Union was amended.

Mr Eglin (DP) suggested that if ratifying the Constitutive Act of the African Union would in the future cause conflict with South Africa's existing international agreements and responsibilities, then this must be mentioned to the Executive.

The Constitutive Act will be discussed further at the next committee meeting.

Designation of Ireland in terms of Section 2(1)(b) of Extradition Act (67 of 1962)
Adv de Lange stated that it was problematic that Section 19 of the Extradition Act did not include designations. The State Law Advisor agreed that South Africa's extradition laws are deficient in this respect. This issue would be referred to the President of the Republic of South Africa as a matter of urgency.

Protocol on Establishment of African Court on Human and Peoples' Rights
Adv de Lange asked the State Law Advisor to describe the functions of the Human Rights Committee which this protocol establishes. The State Law Advisor referred to Part Four of the International Covenant on Civil and Political Rights. Articles 41, 42 and 43 recognises the competency of the Human Rights Committee and refer to its powers.

Mr de Lange stated that South Africa has already signed the Covenant. The Covenant allowed States to lodge complaints when a violation of civil or political rights cannot be resolved domestically. The Protocol allows private civilians to lodge complaints. If a private citizens' political or civil rights are being violated and all other domestic remedies have been exhausted then a complaint can be lodged with the African Court on Human and Peoples' Rights. The main difference between the Human Rights Committee and the African Court is that the Human Rights Committee uses moral persuasion, to provide relief. Unlike the African Court, no adjudication takes place at the Human Rights Committee.

Dr Delport (DP) was unsure as to whether our legal position with regard to the death penalty would remain the same. It is only countries in which the death penalty does not exist, that would ratify the Protocol. If South Africa's legal position in respect of the death penalty changes, then would South Africa be able to withdraw from the Treaty? Adv de Lange was unable to speak with complete confidence but stated that to his knowledge there obviously must be a procedure for a country to withdraw from a treaty.

Suspension from Office of Magistrate in Port Shepstone Magistrates Court
The letter to the Magistrate allowing him to make written submissions to the Committee is being finalised by Adv De Lange.

The meeting was adjourned.

Appendix 1:
Report of the Portfolio Committee on Justice and Constitutional Development on the Designation of Ireland in terms of section 2(1)(b) of the Extradition Act, 1962 (Act 67 of 1962)
The Portfolio Committee on Justice and Constitutional Development having considered the request for approval by Parliament of the Designation o f Ire/and in terms of section 2(1)(b) of the Extradition Act, 1962 (Act 67 of 1962) referred to it, recommends that the House, in terms of section 231(2) of the Constitution approves of the said Designation, with the declaration that the Republic of South Africa recognises the Rule of Speciality as required by Irish Law.

Appendix 2:
NATIONAL ASSEMBLY AND THE NATIONAL COUNCIL OF PROVINCES

EXPLANATORY MEMORANDUM: DESIGNATION OF IRELAND IN TERMS OF
SECTION 2(1)(b) OF THE EXTRADITION ACT, 1962 (ACT NO 67 OF 1962) AS AMENDED

1. PURPOSE
The purpose of this memorandum is to obtain Parliament's approval for the
Republic of South Africa to designate Ireland in terms of Section 2(1)(b) of the
Extradition Act, 1962 (Act No 67 of 1962) as amended.

2. OBJECT OF DESIGNATION
The object of designation is to enable the Government of Ireland, upon application by South Africa, to extradite one Kenneth Douglas Pearce who is sought to stand trial for commission in South Africa, of serious offences of fraud and theft in the amount of approximately P20 million.

3. HISTORICAL BACKGROUND
3.1 The Director of Public Prosecutions for the jurisdictional area of the Witwatersrand Local Division of the High Court wishes to apply for the extradition of one KENNETH DOUGLAS PEARCE who allegedly committed serious offences of fraud and theft within the aforementioned jurisdiction in the amount of approximately P20 million.
3.2 The suspect absconded shortly after the offences were discovered. It was later discovered that he had applied for (and was granted) an Irish passport about two months before he absconded.
3.3 The complainant (Murray & Roberts Holdings Limited) incurred significant expenses to locate the suspect and to assist the SAPS with the investigation of the matter.
3.4 There was an initial attempt to facilitate the matter through the preparation of an application for an order by the Government of Ireland to make applicable to the Republic of South Africa Part II of the Irish Extradition Act, Act No 17 of 1965.
3.5 Advice received from Ireland however, was that such an application would cause, not only delay because of the procedure which needed to be followed in terms of Section 8 of the Irish Extradition Act, but that the mandatory speciality rules in terms of Sections 20 and 21 of the Irish Extradition Act are not provided for in the South African Extradition Act.
3.6 It appeared after investigations that the South African government would not be able to meet the said speciality rules and that the only other option, due to the fact that no treaty exists between the two Republics, would be to request the aforementioned designation.

4. DISCUSSION
4.1 Section 2(1)(b) of the Act provides as follows: "The President may, on such conditions as he or she may deem fit, but subject to the provisions of this Act - (h) designate any foreign State for purposes of section 3(3), and may at any time amend the conditions to which such designation was subjected to or revoke such designation". [Sec 2(1)(b)]
4.2 Section 3(3) of the Act accordingly provides as follows: 'Any person accused or convicted of an extraditable offence committed within the jurisdiction of a designated State shall be liable to be surrendered to such designated State, whether or not the offence was committed before or after the designation of such State and whether or not a court in the Republic has jurisdiction to try such person for such offence". [Sec3(3)]
4.3 Before the designation shall be of any force or effect, Parliament must agree to the designation. Section 2(3)(a) of the Act provides as follows : "No such agreement or designation or any amendment thereof or renovation of the designation, shall be of any force or effect - (a) until the ratification of or accession to, or amendment or revocation of such agreement designation has been agreed to by Parliament" [Sec 2(3)(a)]
4.4 As soon as Parliament has agreed to the designation, the Minister must give notice thereof in the Gazette. In this regard section 2(3)ter provides as follows: "The Minister shall as soon as practicable after Parliament has agreed to the ratification of or accession to, or amendment or revocation of an agreement or the designation of a foreign State, give notice thereof in the Gazette". [Sec 2(3)ter]
4.5 It is a specific requirement that the rule of speciality be recognised and applied in the law of the country that seeks the extradition of a person from Ireland.
4.6 Although our Extradition Act, No 67 of 1962, provides for the application of the law of speciality, Section 19 thereof only provides for it in the case of surrender in terms of an extradition agreement. [Sec 19]
4.7 Regrettably, Section 19 was overlooked when Section 2(1)(b) was inserted by Act No 77 of 1996 and was not made applicable to designation.
4.8 However, Section 2(1)(b) provides that the President may, on such conditions as he or she deem fit, designate any foreign state. [Sec 2(1) introduction]
4.9 Hence it is necessary to insert into any designation the condition that the rule of speciality as required by Irish law be applied in order to make the relationship with Ireland effective.

5. CONSTITUTIONAL IMPLICATIONS
The proposed recommendation was discussed at the meeting of the Extradition/MLA Committee on 18 April 2000 and the committee approved the proposed recommendation, The Interdepartmental Committee includes the State Law Advisors as well as International Law Advisors,

6. FINANCIAL IMPLICATIONS
None

7. RECOMMENDATION
It is recommended that Parliament approve the designation of Ireland in terms of section 2(1)(b) of the Extradition Act, 1962 (Act No 67 of 1962).

Appendix 3:
DEPARTMENT OF FOREIGN AFFAIRS - REPUBLIC OF SOUTH AFRICA
CONSISTENCY OF THE AU ACT WITH SOUTH AFRICA'S INTERNATIONAL OBLIGATIONS TO SADC AND THE EU

1. The State Law Advisers (International Law) have been requested to comment on whether ratification of the Constitutive Act of the African Union ("the AU Act") will have implications for, or conflict with, South Africa's international obligations to the Southern African Development Community (SADC) or the European Union (EU).

2.The question arises from a previous Legal Opinion that we wrote with regard to ratification of the Treaty Establishing the African Economic Community ("the Abudja Treaty") in which we briefly raised these issues.

3.It is important to note however that our point in this regard was raised in the context of the nature and purpose of the Abudja Treaty, which is an economic based treaty. The AU Act by contrast is a political document, a constitution to establish the African Union and transform the existing OAU structure.

4.The difference in the nature and purpose of the AU Act, as compared to the Abudja Treaty, means that the same concerns do not apply in the same manner to the AU Act. Thus the Abudja Treaty is a very detailed and specific agreement, to promote free trade on the African Continent and promote African economic unity. The AU Act on the other hand is a skeletal framework in a far vaguer and more general form. It is a political document that enunciates certain principles and goals for African unity. These broad principles will however have to be elaborated on, both through the implementation of the AU Act and the drafting of Protocols.

5.The political nature of the AU Act places it more squarely within the realm of state Sovereignty that is not constrained as much by international law as the trade realm is, and the AU Act on its own, does not have direct trade implications, as the Abudja Treaty does.

6.Apart from the political basis of the AU Act, it is important to emphasise its vagueness and generality. which is in sharp distinction to the specificity of the Abudja Treaty. As noted in our previous opinion on the AU Act, this will leave a lot of room to implement the AU Act in accordance with South Africa's existing international rights and obligations.

7.As far as the SADC obligations are concerned, it will be incumbent on each SADC Member State to buy into the vision of African on each SADC Member State to "buy into" the vision of African unity enunciated in the AU Act, and to ratify the Act. As far as the SADC structure itself is concerned, because of the broad generality of the provision of the AU Act, we do not envision any conflict.

8.The same general principle applies to South Africa's obligations in relation to the EU, although in this instance there is the added factor that, legally, it is none of their concern how Africa chooses to structure its political co-operation, and the existing agreements with the EU would not infringe on this important area of state sovereignty. In addition, the AU Act does not preclude co-operation with other regional organisations. The only issue of importance to the EU in this regard would be that the AU is established, and acts in accordance, with the general principles of international law. This is an issue that was raised in our previous legal opinion on ratification of the AU Act, and it was pointed out that the generality of the provisions of the AU Act would allow some flexibility in implementing them, to ensure consistency with international law.

9.At the most the ratification of the AU Act could have indirect implications in the trade sphere. Firstly because it aims, at some time in the future, to create central financial institutions, and secondly because it aims to incorporate the African Economic Community (AEC) structure, established by the Abudja Treaty, into the African Union. Neither issue should however conflict with the obligations to SADC and the EU for the following reasons:

9.1 The establishment of financial institutions:
As noted above, the AU Act enunciates a vision to establish these institutions, and this principle in and of itself, does not create any conflicts with existing obligations. The principle will have to be elaborated on in a Protocol at some time in the future and South Africa, if it is a Member State of the AU, will be well placed to participate in negotiations in this regard, and argue against any potential conflicts, should they arise at that stage.

9.2 The incorporation of the AEC structure into the AU
Incorporating the AEC structure into the AU will not create any additional obligations on South Africa, or potential for conflict, than what is already contained in the Abudja Treaty which South Africa recently ratified. Furthermore it is argued forcefully by South Africa and others in the OAU that the Abudja Treaty will have to be amended in order to fit into the new AU structure. This was an important motivating factor for South Africa in ratifying the Abudja Treaty and South Africa, as a State Party to the Abudja Treaty can be involved, and an important role player in, such a process.

10.In summary therefore, we are of the opinion that the political basis for the AU Act, as well as its general and vague provisions do not prima face present any of the potential conflicts with South Africa's international obligations to SADC and the EU which may have arisen in the Abudja Treaty, for the reasons set out above. The provisions of the AU Act will of course have to be implemented, and care will have to be taken to ensure that there is no contradiction with our existing international obligations. This however is a given in any international negotiation, and one which all States share. The AU Act as a founding basis for such implementation will not, of itself, present such conflicts.

11.We trust that this will be of assistance and are available should you have any further queries in this regard.

ADV. JB SCHNEEBERGER
STATE LAW ADVISER (INTERNATIONAL LAW), UN MISSION IN NEW YORK
20 FEBRUARY 2001

Appendix 4:
NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES

EXPLANATORY MEMORANDUM: RATIFICATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

1. PURPOSE OF MEMORANDUM

The purpose of this memorandum is to set out the history purposes and consequences of the International Covenant on Civil and Political Rights of 23 March 19 76 (the Covenant) and to highlight some of the most important provisions thereof, with the view to obtain Parliament's approval for the Republic of South Africa to ratify the Covenant as contemplated in section 231(2) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) (the Constitution).

2. OBJECTS OF THE COVENANT
The Covenant was adopted and opened for signature, ratification and accession by a resolution of the United Nations' General Assembly of 16 December 1966 and entered into force on 23 March 1976. The objects of the Covenant are to ensure that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is given and is proclaimed to be the foundation of freedom of justice and peace in the world. The Covenant furthermore strives so ensure the ideal of free human beings enjoying civil and political freedom and freedom from fear whereby everyone may enjoy their civil and political rights, as well as their economic, social and cultural rights. South Africa signed the Covenant on 3 October 1994.

3. BACKGROUND
The Charter of the United Nations is based on the principles of dignity' and equality inherent in all human beings and since the adoption of the Constitution, fundamental human rights are incorporated as part of the law of South Africa. International human rights treaties could be seen as the international equivalent of the Bill of Rights contained in our Constitution. Ratification of the International Covenant on Civil and Political Rights are therefore essential to send out a message to the international community that South Africa is serious about human nights and in this instance the civil and political rights of its citizens.

4. PROVISIONS REGARDING RATIFICATION
4.1 In terms of Article 48 of the Covenant, the Covenant is open for signature by any State Member of the United Nations subject to ratification or accession. Ratification shall be effected by the deposit of an instrument of ratification with the Secretary-General of the United Nations. Article 49 provides that for each State ratifing or acceding to the Covenant, the Covenant shall enter into force three months after the date of deposit of its own instrument of ratification or accession.

4.2 Section 231(2) of the Constitution provides that all international agreements which require either ratification or accession shall bind the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces.

4.3 South Africa signed the Covenant on 3 October 1994 which should now be ratified. Cabinet approved that steps be taken to request Parliament's approval to accede to the Covenant.

5. OVERVIEW OF IMPORTANT PROVISIONS OF THE COVENANT
A short overview of the important provisions of the Covenant is below.

5.1 Part I of the Covenant provides for the right to self-determination, the right to freely dispose of wealth and resources and provides that States Parties shall promote the realisation of the right of self-determination.

5.2 Part II of the Covenant provides that States Parties shall, without distinction of any kind, respect the rights recognised in the Covenant and stipulate that if necessary, legislation should be adopted to protect these rights. In time of public emergency, States Parties may take measures derogating from their obligations, provided that measures are not inconsistent with their other obligations under international law. Certain articles may not be derogated from.

5.3 Part III of the Covenant protects the right to life and provides that no person shall be arbitrarily deprived of his life. It furthermore provides that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and slaver>' and forced or compulsory labour are prohibited. The right to liberty and security' of a person are protected and all persons deprived of their liberty shall be treated with humanity. The right to freedom of movement within the territory of a State is protected and an alien lawfully in the territory of a State Party' may be expelled therefrom. The Covenant furthermore states that all persons shall be equal before the courts and tribunals and that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilt>'. The right to freedom of thought, conscience and religion are protected and everyone shall have the right to hold opinions without interference. Any propaganda for war is prohibited and the right to peacefully assemble, the right to freedom of association, the right of the family as the fundamental group unit of society, children's rights, the right to conduct of public affairs, the right to vote and the right to have access to public services are protected.

5.4 Part TV establishes a Human Rights Committee (the Committee) consisting of eighteen members to carry out the functions provided for in the Covenant and procedures for election to the Committee are also stipulated. The functions of the Committee and procedures to be followed by it, are set out and also provide that a State Party to the Covenant can nominate two nationals to the Committee. States Parties may, through certain procedures, ensure that other States Parties give effect to the provisions of the Covenant to the extent that if a matter of non-compliance with the Covenant cannot be resolved by the Parties themselves, the matter can be referred to the Committee. The established Committee shall submit annual reports to the General-Assembly of the United Nations through the Economic and Social Council.

5.5 Part V of the Covenant deals with interpretation and stipulates that the Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and that nothing shall be interpreted as impairing the inherent right of all people to enjoy and utilise fully and freely their natural wealth and resources.


5.6 Part VI deals with the signing, ratification and accession procedures and stipulates that any State Party may propose an amendment and file it with the secretary-general of the United Nations. The Covenant is equally authentic in Chinese, English, French, Russian and Spanish.

6. DECLARATION UNDER THE COVENANT
6.1 Article 41 of the Covenant provides that a State Party may at any time declare that it recognises the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Part>' which has made a declaration recognising in regard to itself the competence of the Committee No communications shall be received by the Committee if it concerns a State Party which has not made such a declaration.

6.2 In order to emphasise the Republic's determination to give effect to the objects of the Covenant, it seems appropriate that the Republic declare that it recognises the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations.

7. COMMENT BY THE STATE LAW ADVISERS
The State Law Advisers and the State Law Advisers (International Law) have indicated that the provisions of the Covenant are not in conflict with South Africa's domestic law or international obligations.

8. RECOMMENDATION
It is recommended that Parliament approve of-
(a) ratification of the Covenant in terms of section 23 1 of the Constitution; and

(b) a declaration in terms of article 41 of the Covenant that the Republic recognises the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant.

Once the Covenant is ratified by Parliament, the Department will submit an instrument of ratification to the Minister of Foreign Affairs for his signature, who in turn will deposit it with the Secretary-General of the United Nations.

Appendix 5:
DEPARTMENT OF TRADE AND INDUSTRY
PARLIAMENTARY RATIFICATION OF THE CONSTITUTIVE ACT OF THE AFRICAN UNION (THE ACT)

1. The documents provided to us make it abundantly clear that it is imperative for the Republic of South Africa to ratify the Act as a matter of priority. In this respect it is also noted that Cabinet approved South Africa's signature and ratification of the Act on 23 August 2000 and that the President duly signed the Act on 8 September 2000. We are furthermore guided by the fact that the State Law Advisers (Justice) are of the opinion that the provisions of the Act are indeed consistent with our domestic law and that the State Law Advisers hold the view that, irrespective of certain concerns raised, non-ratification, amendments or reservations to the Act are simply not feasible.

2. It is within this context that we have been requested to express opinion on whether the Act would not in any way impact adversely on any international trade agreements under the auspices of the Department of Trade & Industry.

3. An important observation in this respect is that the Act is a mere skeletal framework which will have to be elaborated on for its effective implementation. It has been made clear that the obligations created for member states will have to be further delineated over time so as to give them substantive meaning and content. This will as of necessary require additional legislative measures. In essence, especially given the observation that the Act does not embody self-executing provisions that will gain the force and effect of law upon the act of ratification, the enactment of further legislation appears to be a prerequisite for the Act to enjoy substantive legal effect in our domestic law.

4. We respectfully submit that any concerns regarding adverse impact on international trade agreements should be considered within this context. Should it at any stage appear that an international agreement stands to be affected, the implications thereof ought to be taken care of in the legislative processes that will in future be required to give substantive legal effect to the provisions of the Act.

5. We will gladly discuss further should you so require.

Appendix 6:
JOINT COMMITTEE DRAFT REPORT
The Portfolio Committees on Foreign Affairs, Finance, Justice and Constitutional Development and the Select Committees on Economic Affairs, Finance and Security and Constitutional Affairs (the committees), having considered the request for approval by Parliament of the Constitutive Act of the African Union (the Act), referred to it, recommends that the respective Houses, in terms of section 231(2) of the Constitution, approve the said Act.

1.The committees wish to further report that they do not wish to and should not be understood to be proposing the adoption of any reservations or of a declaration in respect of the said Act.

2.The committees accepted that the Act would create some far-reaching implications and obligations for South Africa, but that South Africa would not be able to continue its prominent role in the sub-region and on the Continent if it remained outside the framework of the Act. Although there is understanding for the implications the Act has for South Africa, it is, from a political point of view, imperative that the Act be ratified as a matter of priority if South Africa wishes to remain a committed, influential and credible member of both the OAUIAEC and SADC.

3.However, the Act appears to contain: various clauses that are open to different interpretations; various clauses that appear to be contradictory; and clauses that may be interpreted as impinging upon the sovereignty of Member States, in the executive, legislative or judicial spheres, more than is usual in the case of the formation of such an Union.

4.Due to constraints of time and information, the committees wish to only highlight two such examples which are possibly of a more serious nature.

5.Firstly, there are the various clauses that deal with the issue of socio-economic policies and integration of the continent, in a potentially contradictory manner, or may be interpreted as possibly impinging on the sovereignty of the Member States, or, at the very least, is open to various interpretations. On the one hand, there are provisions providing:
-in article 3 (c) that the objectives of the Union shall be to accelerate the political and socio-economic integration of the continent;
-in article 3 (I) that the objectives of the Union shall be to co-ordinate and harmonise the policies between the existing and future Regional Economic Committees for the gradual attainment of the objectives of the Union;
-in articles 9 (1) (a) and (e) that the Assembly shall determine the common policies of the Union and monitor the implementation of policies and decisions of the Union; and
-in article 13 (2) that the Executive Council be responsible to the Assembly, and shall consider issues referred to it and monitor the implementation of policies formulated by the Assembly.

On the other hand, there are provisions providing:
-in article 13 (1) that the Executive Council shall co-ordinate and take decisions on policies in areas of common interest to the Member States and then twelve such specific grounds are included, like education, social security and so on; and
-in article 11 that the decisions of the Executive Committee may be taken by a two thirds majority of the Member States.

6.Secondly, the issue of whether the Act is consistent with International Law and South Africa's international obligations, requires examination.

In this regard there are some provisions, read individually or collectively, which require further attention, namely: Article 3 (b) requiring states to defend the sovereignty, territorial integrity and independence of its Member States;
-Article 4 (d) on the establishment of a common defence policy for the African Continent;
-Article 4 (h) on 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;
-Article 4 (j) on the right of Member States to request intervention from the Union in order to restore peace and security; and
-Articles 7 and 11 allowing for decisions of the Assembly and the Executive Committee, respectively, to be taken by a two thirds majority of the Member States.

The difficulty with these provisions, as presently worded, is that they may be used to justify a use of force in contravention of International Law and the Charter of the United Nations. Article 2 (4) of the Charter of the United Nations provides that all "Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations". In exceptional circumstance, where force may be used this can only be done in self-defence or with the authorisation of the Security Council (Chapter VII of the UN Charter).

It should also be noted that while interventions and the use of armed force without Security Council authorisation are illegal according to prevailing legal opinion there is an indication that international law may be changing in this regard. The recent NATO intervention in Kosovo (though by no means uncontroversial) is a case in point. Furthermore, there is a trend in interpreting Article 51 of the UN Charter (which condones the use of force for individual or collective self defence until the Security Council has become seized of the matter) very widely to condone interventions.

Thus, it can be said that the aforementioned provisions do not per se give a right to use force, but, at the very least, they may present the opportunity for such an interpretation. Therefore, the conclusion may be reached that both international law on the use of armed force and the provisions of the Act are possibly open to interpretation. Having said that however the possibility of having the Act conflict with International Law, including the UN Charter, may be a serious one and must be considered seriously.

7.In response to the above issues and other matters raised by the committees the Department of Foreign Affairs has indicated that the Act is a mere skeletal framework underpinning such an African Union, which will have to be elaborated on for its effective implementation. This elaboration may take place by way of negotiation and adoption of various protocols on specific aspects of the Act or decisions of the Assembly or revision and amendment of the Act in accordance with Article 32. The Department is of the view that this will provide the opportunity to ensure that the potential problems identified by the committees would be able to be dealt with through these processes, which are intended to concretise the provisions contained in the Act. The committees agree with this point of view and the approach suggested by the Department. The committees recommend accordingly.

8.It is recommended that the Executive monitor the processes leading to the adoption of the Act and the implementation of the Act upon adoption, to ensure that it is interpreted and applied in accordance with our Constitution and legal dispensation and our obligations under International Law and International conventions and treaties. The committees would further like to recommend that during the process of negotiation, drafting and adoption of such protocols and the implementation of the Act that Parliament be kept informed of progress, including, if and when possible, to be consulted on such processes, in an inclusive attempt to strengthen the hand of our negotiators during such processes.



















































Audio

No related

Documents

No related documents

Present

  • We don't have attendance info for this committee meeting
Share this page: