Constitutive Act of the African Union: Adoption of Report

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Justice and Correctional Services

26 February 2001
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Meeting report

JUSTICE & CONSTITUTIONAL DEVELOPMENT, FOREIGN AFFAIRS PORTFOLIO COMMITTEES, ECONOMIC AFFAIRS SELECT COMMITTEE: JOINT MEETING
27 February 2001
CONSTITUTIVE ACT OF THE AFRICAN UNION: ADOPTION OF REPORT

Chairperson: Adv J de Lange

Relevant Documents
Constitutive Act of the African Union
Joint Committee Draft Report (see Appendix)

SUMMARY
The Portfolio Committees on Foreign Affairs, Justice and Constitutional Development, the Select Committee on Economic Affairs and the National Council of Provinces met to adopt the joint committee report recommending that Parliament approve the Constitutive Act of the African Union. The Portfolio Committee on Justice and Constitutional Development discussed future plans of the Committee.

MINUTES
Constitutive Act of the African Union
The Portfolio Committees on Foreign Affairs, Justice and Constitutional Development and the Select Committee on Economic Affairs adopted the joint committee report on the Constitutive Act of the African Union.

Mr Ramgobin (ANC) suggested that the committee report should be circulated to all other parties. The Committee clerks had already arranged this. The report will go to the National Assembly where it would be debated amongst members.

Designation of Ireland
Adv de Lange stated that the State Law Advisor was attempting to discuss the Designation of Ireland in terms of Section 2(1)(b) of the Extradition Act, 1962 (Act 67 of 1962) with the President of the Republic of South Africa, specifically the fact that section 19 of the Extradition Act does not include designations.

Suspension of Magistrate
The letter to the Port Shepstone Magistrate has been sent . The letter gives the Magistrate twenty-one days to provide a written submission to the Committee.

High Court Bill
The High Court Bill has been tabled in Parliament. Adv de Lange has made Press statements in this regard, public hearings will be held shortly.

Study tours
The Committee had decided that visits to the Regional and District Magistrates Courts and High Courts (including Civil Courts) in certain provinces would take place soon. The Chairperson is waiting for permission for the trips to be granted. The provinces that will be visited are Eastern Cape, Kwa-Zulu Natal, Gauteng and Northern Province.

The meeting was adjourned.

Appendix:
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.

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