Fourth Report of the Working Group on the African Union

A. Introduction
The Working Group was established on 16 November 2001 by a resolution of the National Assembly. The primary focus of the Working Group was to consider the implementation of the Constitutive Act of the African Union.

B. Objectives of the Working Group
The brief of the Working Group is to:

• Consider Parliament’s participation in the implementation of the Constitutive Act of the African Union and suggest appropriate procedural mechanisms for this.
• Determine the involvement of Parliament in assisting the South African government in its role as chair of the African Union.
  

C. Meetings of the Working Group
The Working Group met on 15 January 2002, 14 February 2002, 27 February 2002 and 7 March 2002. The Working Group established a Planning Team to address detailed planning and technical matters. The Planning Team held its first meeting on 19 February 2002. The Working Group met with members of the Inter-Ministerial Committee on the African Union on 28 February 2002 to discuss the African Union.

D. Seminar on the African Union
A seminar on the African Union was held on 1 and 2 March 2002, in cooperation with the Africa Institute of South Africa and the Institute for Global Dialogue

Members of Parliament and representatives from the Departments of Foreign Affairs and Trade and Industry attended the seminar. The objectives of the seminar were to:

• Acquaint Members with the African Union (AU).
• Allow Members to engage with the challenges posed by the implementation of the Constitutive Act.
• Encourage Members to consider the participation of Parliament in the process of shaping the evolution of the AU.
• Discuss the role of South Africa in the implementation of the Constitutive Act.
• Share knowledge and insight with the research institutes and Government Departments present.

E. Working Group Discussions
Following its reports to the National Assembly on 27 February 2002 and 12 March 2002, interaction with the members of the Inter-Ministerial Committee, deliberations during the aforementioned meetings including the seminar on the African Union and the debate on the African Union on 12 March 2002 in the National Assembly, the Working Group wishes to highlight the following considerations regarding the establishment of the African Union and the implementation of the Constitutive Act of the African Union.

1. Political Considerations
Consideration should be given to such issues as what constitutes a conducive political environment, political integration, ceding sovereignty, and human rights.

• In the transition from the OAU to the AU, membership to the AU is open to all Member States of the OAU (Article 27). In the future, consideration should be given to whether to maintain this principle of inclusivity for Member States whose political environments are not conducive to the attainment of the objectives of the AU.
• Mechanisms need to be developed to encourage Member States to create and maintain political environments that promote democracy and good governance.

• Political integration may be seen as a means through which African States are empowered to face their respective challenges. The AU can be perceived as an evolving structure responding to the challenges facing Africa.
• There is a need to bridge historical and linguistic divisions in Africa in order to promote unity, solidarity, cohesion and cooperation among the peoples of Africa and African States.

• The Constitutive Act provides for political and socio-economic integration and a common defence policy, which could impact on the sovereignty of States. Thus, the Constitutionality of ceding sovereignty with regard to these issues raises some concern.
• South Africa should consider the principles and terms of ceding its sovereignty in a way that does not impact negatively on the human rights of its citizens. A phased and strategic approach would be necessary.

• In respect of human rights, it is necessary to consider an appropriate role for the Commission on Human and Peoples’ Rights in relation to the AU.
• With regard to the Charter on Peoples’ and Human Rights, it is noted that there have been many developments in International Human Rights law, since the adoption of the Charter in 1987. South Africa should initiate a review of the Charter to establish congruence with current human rights law thereby ensuring the effective promotion and protection of human rights as envisaged under Article 3 of the Act.

2. Legislative Considerations
Some of the key legal considerations include the following:

• Legal implications
• Drafting and interpretation
• The Court of Justice
• The Central Organ
• International Intervention
• Organs of the AU

• Legal opinion received from the South African State Law Advisers indicates that the Constitutive Act of the AU does not conflict with domestic law. Further consideration should however be given to whether the Act is consistent with International law and South Africa’s international obligations.
• Whilst the Constitutive Act does not have any self-executing provisions, Member States may be obliged to harmonise existing; or enact new domestic laws in order to give legal effect to the provisions of the Constitutive Act.
• South Africa may need to consider amending its Constitution to accomodate its obligations under the Constitutive Act.

• Attention must be paid to inconsistencies in the drafting of the Constitutive Act. The ‘soft’ legal drafting in Article 3(c), (l) and (n) compared to the definitive legal drafting in Article 9(a), for example creates some ambiguity and vagueness in the Act.
• There appear to be no contradictions or ambiguity among Articles 4 (a), (g), and (h). Article 4(h) dealing with grounds for intervention by the Union in the affairs of Member States should take into account Article 3 (h) in respect of reference to the promotion and protection of human rights. The grounds for intervention should also be expanded to include violations of human and peoples’ rights.
• To facilitate democratic decision making, it is suggested that checks and balances be built into the Constitutive Act. In this light, the quorum for Assembly decisions should be re-examined particularly with regard to policy decisions and issues relating to ceding sovereignty.
• The Act must be revised to reflect gender sensitive language.

• It is suggested that the Protocol makes the Court of Justice the supreme institution for the protection of peoples and human rights. In terms of the South African Constitution however, the Constitutional Court is the supreme court protecting basic human rights. The consequences of deferring or referring matters to the Court of Justice will need to be considered.
• With reference to Article 3(h), it is likely that the Court of Justice will make decisions based on the African Charter which may have become outdated in terms of human rights. The South African Constitution, being more recent, is more in line with international best practice in this regard. Also, the equality clauses in the African Charter and the South African Constitution are different. The Court of Justice will therefore function from a different legal basis. This may cause some tension. Mechanisms may be required to regulate issues that can be brought before the Court of Justice. Further discussion is required regarding the jurisdiction of the Court of Justice.
• While South Africa has extended the right to class actions to organs of civil society in the interest of the public, many countries do not make a similar provision. Thus, if the Constitutive Act provides for class actions, some Member States would need to pass domestic laws to comply with their obligations in terms of this Act. Concerns were raised about the possibility of foreign NGO’s funding class actions in different Member States to advance non-African agendas.

• It is envisaged that the Central Organ will be established through Article 9(1)(d). Since this represents an important organ, it should be established by the principal Act under Article 5 and not by the Assembly under Article 9. The relationship between the Central Organ and the Assembly of the AU should therefore be redefined.
• The intended focus of the Central Organ is safety and security. This should be extended to include all matters of human security.

• Whilst the need for intervention as envisaged by the Act is acknowledged, it must be ensured that any form of intervention occurs within the parameters of public international law.
• South African representatives to the AU should ensure that the AU does not adopt any provisions that will impact negatively on South Africa’s international obligations. An audit of South Africa’s international obligations is envisaged.

• Whilst the Act provides for the establishment of various organs, time frames for their establishment are not set. The lack of defined timeframes may impact negatively on the implementation of the Act.
• The Act is also unclear regarding the separate powers and functions of the different organs. There is overlap in authority of some organs thus making it unclear which organs would have jurisdiction over what matters.

3. Economic Considerations
(a) General

• The AU envisages accelerating efforts to promote economic integration in Africa. This raises the central issue of the appropriate strategy for promoting economic integration. The conventional trade integration approach focuses on removal of tariff and regulatory barriers and moving from Free Trade Area to Customs Union, common market and economic union. This approach has been criticised as inappropriate to developing countries and regions where major trade barriers often derive from underdeveloped production structures and inadequate infrastructure. Premature moves to "high" levels of trade integration e.g. a continent- wide customs union will therefore not necessarily contribute to addressing key challenges facing the continent.
• Economic regeneration of Africa requires that priority be given to development integration, which is not solely focused on conventional trade integration. This implies combining efforts to promote trade integration with sectoral cooperation in key infrastructural and productive sectors. Addressing developmental backlogs therefore serves as the basis for promoting effective trade integration. This will also emphasise political cooperation at an earlier stage than in conventional trade integration programmes.
• Tensions exist between these two paradigms, both in existing sub-regional programmes and in the Constitutive Act.
• The terms of reference regarding the Economic, Social and Cultural Council (ECOSOC) in the African Union, its relationship with sub-regional economic bodies and the specialised technical committees needs to be clarified.

2. Economic integration, infrastructural development and sectoral

• The case for a developmental approach to promoting economic integration in Africa arises from the reality that many of the major barriers to promoting intra-regional trade arise not from tariff and regulatory barriers but from underdeveloped production structures and inadequate infrastructure.
• The integration strategy needs to build on what exists in sub-regions and should strive to improve sectoral cooperation as well as capacity building in sub-regional organisations. Developments such as the forthcoming Cotonou Economic Partnership negotiations will underscore the need to develop strategies for trade relations between sub-regions: options include a continental FTA or preferential agreements between sub-regions.
• Infrastructural development like transport, telecommunications and information technology should be a priority. NEPAD can be considered an appropriate programme in this regard.
• African countries have similar trade patterns based on exports of primary products to the North. Intra-African trade is therefore very limited. The European Union envisages reciprocal trade agreements between African regions and Northern trading blocs. These could lead to a situation where South Africa finds itself trading with African countries outside the SADC region on worse terms than e.g. the European Union. Hence, integration in Africa is not happening in a vacuum, there are developments at global level that are re-shaping the terrain.
• It is also important to define the economic partnerships that will benefit Africa. Engaging institutions like the G7 in order to maximise the benefits of globalisation also needs to be addressed. It is therefore necessary to think strategically in order to face the challenge of globalisation.

• The establishment of an African Central Bank should not attempt to prematurely promote monetary union.
• While continent-wide monetary union is considered a legitimate long-term objective, this should not be seen as feasible in the short-term.
• There must be co-operation with existing monetary union arrangements, such as that in West Africa and the common monetary area between South Africa, Lesotho, Swaziland and Namibia.
• A focus on promoting cooperation between central banks similar to the Finance and Investment Sector Coordinating Unit of SADC could be a model for early activity.

4. Pan African Parliament
To give effect to the provisions under Article 3(g) and 4(c) of the Constitutive Act, the establishment of the Pan-African Parliament should be prioritised. To this end, the Presiding Officers should engage the Executive to establish a role for African Parliaments in the African Summit in July 2002. Parliaments must determine the appropriate approaches and mechanisms to foster public awareness and engagement with issues concerning the establishment of the African Union and the implementation of the Constitutive Act.

In terms of the Protocol, the following should be considered:

• Article 2 of the Protocol states that the Pan African Parliament is established by Member States. This may conflict with the provisions under Article 5 of the Constitutive Act and Article 7 of the Abuja Treaty, which establish the Pan African Parliament as one of the organs of the AU and of the OAU respectively. Article 5 of the Constitutive Act should be seen as the legal basis for the establishment of the Pan African Parliament.
• In terms of Article 4, 5 Members at least 1 of who must be a woman shall represent each Member State in the Pan African Parliament. Compliance with this provision must be monitored since many African Parliaments are male dominated.
• Under Article 5(2), the Assembly shall determine the beginning of the first term of office of the Pan African Parliament. This may impact on the independence of the Pan African Parliament since the Assembly may delay the first sitting if it is not in the best interest of the Assembly.
• Notwithstanding the provisions under Article 33(2), consideration must be given to whether the Pan African Parliament Protocol should be ratified in terms of Article 7 of the Abuja Treaty or Article 17 of the Constitutive Act.

The following consideration is raised in terms of the Draft Rules of Procedure of the Assembly of the Union with regards to the Pan African Parliament:

• Rule 19 refers to amongst others, attendance of the President of the Pan African Parliament at the sittings of the Assembly. The nature of participation of the President at such sittings must be clarified.

F. Recommendations
It is recommended that:
Parliament should request that the Minister of Foreign Affairs table the Protocol on the Pan African Parliament for ratification as soon as possible.

• The Presiding Officers should interact with other African Parliaments and Parliamentary formations, in particular the Southern African Development Community Parliamentary Forum in order to expedite the ratification of the Protocol in the region.
• Since the Constitutive Act of the AU provides for the participation of the African peoples and the Pan African Parliament in the activities of the Union, Parliament should engage the Executive to establish a role for African Parliaments in the Inaugural Summit of the African Union in July 2002.
• South Africa should initiate a review of the Charter on Human and Peoples’ Rights.
• South Africa should develop proposals on the role of the Commission on Peoples’ and Human Rights relative to the AU.
• Parliament conducts an audit of South Africa’s international obligations in terms of public international law, through the relevant parliamentary committee(s).
• Parliament proposes specific amendments and revisions to the Act for consideration by the Inter-Ministerial Committee on the AU and submission to the Commission under Article 32 of the Act.
• South Africa supports and encourages a developmental approach to the political and socio-economic integration of Africa envisaged under Article 3 of the Constitutive Act of the AU.