Constitutive Act of African Union and other treaties: Deliberations

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Justice and Correctional Services

19 February 2001
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JUSTICE & CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE MEETING
20 February 2001
CONSTITUTIVE ACT OF THE AFRICAN UNION : DELIBERATIONS

Chairperson : Adv J H de Lange

Documents handed out:
Legal Opinion by the Chief State Law Advisor (12 October 1999)
Legal Opinion by Chief state Law Advisor (22 October 1999)
Constitutive Act of the African Union
Report by Minister of Justice and Constitutional Development.
Treaty on Mutual Legal Assistance in Criminal Matters between RSA and Canada (1)
Explanatory Memorandum: Treaty (1)
Extradition Treaty between RSA and Canada
Designation of Ireland in terms of section 2(1)(b) of the Extradition Act,1962
Protocol on the Establishment of the African Court on Human and Peoples' Rights
Optional Protocol to the International Covenant on Civil and Political Rights.

SUMMARY
The Committee previously drafted a report stating their view that the Constitutive Act of the African Union should be adopted. However, the Committee realised that there are certain issues in respect of the adoption of the Act that had to be discussed.
The Committee, however, expressed its unequivocal view that none of the members had any reservations in respect of the Act itself.

The Committee recommended that the House should approve the following Treaties:
- Treaty on Mutual Legal Assistance in Criminal Matters between RSA and Canada
- Extradition Treaty between the RSA and Canada
- Protocol on Establishment of the African Court on Human and Peoples' Rights
- Treaty on the Second Optional Protocol to the International Covenant on Civil and Political Rights.
The Committee will discuss further the Treaty on the Designation of Ireland in terms of section 2(1)(b) of the Extradition Act,1962.

The magistrate who was suspended will be asked to make a written representation to the Committee. Magistrate suspensions have to be referred to the Magistrate's Commission, then to the Minister of Justice and Constitutional Development and thereafter to Parliament. Members believe this to be a cumbersome process as the suspension occurred in 1997.

MINUTES
Constitutive Act of the African Union
Mr Eglin (DP) referred the Committee to the State Law Advisors report on the 29 August 2000. The report indicated that the Abuja Treaty "will have political, financial and legislative implications " in South Africa. Mr Eglin suggested that since the Abuja Treaty will have implications on Trade and Industry, the relevant Portfolio Committee should be invited to join the discussions on the Constitutive Act of The African Union.

Mr de Lange (Chairperson) suggested that there were already two Committees involved and that to involve another one would make the process more cumbersome. There were also three Chairpersons from the National Council of Provinces present at the hearings. However, if the member felt that there was an absolute need to involve Trade and Industry Portfolio Committee, then this should be accommodated.

Mr Eglin (DP) suggested that it would be beneficial if the Trade and Industry Department could submit a report on the adoption of the Act. This would allow them to put their minds to the matter of any implications that the Abuja treaty may have on other treaties that South Africa has ratified. Mr Ebrahim (Chairperson of the Foreign Affairs Portfolio Committee) stated that consultation with Trade and Industry would begin the next day. The Law Advisors would also be contacted to assist in the matter relating to the Trade and Industry Department report.

Mr Ramgobin (ANC) said that South Africa had to ratify the Act and adopt its principles. They should ensure that they do not, in ratifying the Act, violate any existing protocol or law. He was adamant that the Act needed to be urgently adopted.

Mr de Lange stated that although they do need to ratify the Act, the Committee had to provide guidance to the South African negotiators to ensure that they do not act contrary to the Constitution or against any international agreements.

Mr Eglin (DP) suggested that the report should include a duty on the Executive to consult with the Committee. Here he was referring to the process of taking part in the negotiations around the drafting of the final Act.

Mr Ramgobin (ANC) responded that by adding such a condition to the report we would be sending a message to the other twelve countries that have not ratified the Act, that we have reservations about the adoption of the Act.

Mr de Lange expressed deep concern for the ANC member's statement. He said that he did not get the impression that any member of the Committee was expressing a reservation about the adoption of the Act. Further, there was a specific procedure to lodge a reservation. The report of the Committee was intended for Parliament and purely for the purpose of making recommendations and providing guidelines.

Mr Ramgobin (ANC) suggested that such a condition could be seen as a qualitative reservation. Whether it was in the form of a declaration or a reservation, this would be a weakness in South Africa's ratification of the Act.

Mr de Lange stated, once again, that he had not heard any reservations from any members. The Committee has not suggested that any reservation should be proposed. He stated that the Committees' report was one between the Committee and the Executive.

Suspension of Magistrate
The Chair referred to the report of the Minister for Justice and Constitutional Development regarding the suspension of Mr H Z Zulu, Magistrate at the Magistrate Court, Port Shepstone. The report seemed to suggest that although the report on the suspension of the Magistrate was tabled in Parliament more than fourteen days after the Magistrates suspension, this would not prejudice the Magistrate in any way. According to the report the Magistrate had ample opportunity to make representations on his own behalf.

The issue relating to whether Mr Zulu should be given the opportunity to be personally present and make representations to the Committee was discussed in the Minister's report. The Minister was of the view that the Committee, bearing in mind all the circumstances concerning the matter, should make the decision regarding Mr Zulu's representations. Mr de Lange stated that the Committee would ask Mr Zulu to make written representations to the Committee within 21 working days of receipt of
the letter.

Ms Chohan-Kota (ANC) inquired as to what matters in respect of the judiciary are referred to the Committee. Mr de Lange responded that all suspensions and removals from Office are referred to Parliament. Mr Delport (DP) stated that such matters first are referred to the Magistrate's Commission, then to the Minister of Justice and Constitutional Development and thereafter to the Committee. He suggested that this was too long a process. Ms Camerer (NNP) suggested that it was in 1997 that the said Magistrate was seen to be bringing disrepute to the Bench, however, the matter has not yet been resolved.

Treaty on Mutual Legal Assistance in Criminal Matters between the RSA and Canada and Extradition Treaty between the RSA and Canada
Mr de Lange asked the State Law Advisor why there was such a delay before the Mutual Legal Assistance Treaty came to the Committee. The Law Advisor replied that the Minister approved tabling the Treaty in Parliament on 30 May 2000. However, the Canadian Government had raised certain issues in respect of the treaty. Thus the International Law Advisors had spent time looking at these issues. There had been a subsequent delay in the Treaty being submitted to Parliament. Mr de Lange was unhappy with this explanation and said that it was unacceptable.

An ANC member asked whether it was necessary that the Treaties had to be submitted to Parliament. Mr de Lange indicated that in terms of the Constitution, it was necessary to do this. Also this ensures that processes, such as the ratification of treaties, do not take place behind closed doors.

An ANC member asked whether the Committee had any relevant input to make in respect of the Treaties and if it could change anything in the Treaty. Mr de Lange stated that the Committee could ratify the treaty or not ratify it. If the Committee was unhappy with any aspects of the Treaty then it would send it back to the Executive.

The Committee recommended that the House should approve both Treaties.

Designation of Ireland in terms of section 2(1)(b) of the Extradition Act, 1962
The Committee recommended that the House, in terms of section 231(2) of the Constitution, approves the said Designation, with the declaration that the Republic of South Africa recognises the Rule of Speciality as required by Irish Law.

Protocol on Establishment of the African Court on Human and Peoples' Rights
The Committee recommended that the House, in terms of section 231(2) of the Constitution, approves of the Protocol subject to the declaration under article 34(6) of the said protocol : The Government of the Republic of South Africa accepts the competence of the African Court to receive cases under Article 5(3) of this Protocol, provided that the Court shall not receive such cases without the Government of the Republic of South Africa's prior written notice.

Treaty on the Second Optional Protocol to the International Covenant on Civil and Political Rights
The Committee recommended that, the Treaty on the Second Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, and, the Treaty on Second Optional Protocol to the International Covenant on Civil and Political Rights adopted on 15 December 1989, be approved by the House in terms of section 231(2) of the Constitution.

Mr de Lange stated that the Committee needed to discuss further the Treaty on the Designation of Ireland in terms of section 2(1)(b) of the Extradition Act,1962.

The meeting was adjourned.

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