Fourth Report of the Working Group on the African Union

Part 1: Activities of the Working Group

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.

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 the process of implementation of the African Union.

The Working Group met on 15 January 2002, 14 February 2002, 27 February 2002, 28 February 2002, 7 March 2002, 18 March 2002, 30 April 2002 and 10 May 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.

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.

Following its reports to the National Assembly on 27 February 2002, 12 March 2002 and 18 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, amongst others, issues such as what constitutes a conducive political environment, political integration, ceding sovereignty, and human rights.

(a) Political Environment

- 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.

(b) Political Integration

- 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 may need to consider the principles and terms of ceding its sovereignty in a way t-that does not impact negatively on the human rights of its citizens. A phased and strategic approach may be necessary.

- In respect of human rights, it may be 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 Human and Peoples' Rights, it is noted that there have been many developments in international human rights law, since the adoption of the Charter in 1987. 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 may therefore be required.

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

(a) Legal implications

- 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 may need to 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 may need to 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 may create 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. Consideration may be given to the expansion of the grounds for intervention to include violations of human and peoples' rights.
- To facilitate democratic decision making, checks and balances may need to be built into the Constitutive Act. In this light, the quorum for Assembly decisions may need to be re-examined, particularly with regard to policy decisions and issues relating to ceding sovereignty.
- The Act needs to 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 may 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 NGOs 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, consideration may need to be given to its establishment 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 may therefore need to be redefined.
- The intended focus of the Central Organ is safety and security. The extension of the role of the Central Organ to all matters of human security may need to be considered.
- The relationship amongst the Central Organ, the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA), the Conflict Management Centre of the OAU and the UN needs clarification.

- Whilst the need for intervention as envisaged by the Act is acknowledged, it may be necessary to ensure that any form of intervention occurs within the parameters of public international law.

- South African representatives to the AU need to be vigilant in ensuring 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, specific time frames for their establishment are not set. The lack of defined time frames 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.

(b) 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 may need to be prioritised. NEPAD may 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 may also be important to define the economic partnerships that are likely to 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.
- It may be necessary to address the causes and consequences of cross-border migration, particularly of labour and goods.

Regarding the establishment of an African Central Bank, if this is read as meaning monetary union, this may not be feasible in the short term given that Africa has more than 50 different currencies with very unequal values.

- The establishment of an African Central Bank should not be viewed as an attempt to prematurely promote monetary union.
- Continent-wide monetary union may be considered a legitimate long-term objective.
- Consideration may need to be given to 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.

The financial and human resource implications of the establishment and sustainability of the AU need to be determined.

- Detailed cost analyses for each organ of the AU, including infrastructure, personnel and operational costs would need to be developed.

- Sources and sustainability of funding would need to be determined.
- One of the reasons for the financial constraints of the OAU may be the inability of some member countries to pay their membership fees. This may be largely due to the fact that member countries also hold membership of a number of other organisations, which require membership fees. Article 23 of the AU Constitutive Act aims to regulate this.

5. 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 may need to be prioritised. To this end, the Presiding Officers could engage the Executive to establish a role for African Parliaments in the African Summit in July 2002. Parliaments would need to 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 may need to 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 can be considered as the legal basis for the establishment of the Pan African Parliament.
- In terms of Article 4, 5 Members, at least 1 of whom must be a woman, shall represent each Member State in the Pan-African Parliament. Compliance with this provision may need to 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 may need to be given as 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 Protocol may need to include a provision defining the relationship between the Pan-African Parliament and national and regional Parliaments of Member States.

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 would need to be clarified.

- The Speaker has requested parties to nominate additional Members to serve on the Working Group.
- The Minister of Foreign Affairs has signed the "Pan-African Protocol" -Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament. According to the Department of Foreign Affairs, the Protocol will be tabled in Parliament for ratification once Cabinet has considered it.
- The Speaker has communicated with the Secretary-General of the SADC Parliamentary Forum with a view to promoting early ratification of the Protocol by the members of SADC and of other Parliamentary formations on the continent.
- The Speaker regularly engages with the Executive regarding the nature of Parliamentary participation during the Inaugural Summit of the African Union in July 2002. The Working Group will meet with the Inter-ministerial Committee on the African Union before the AU Summit in July 2002.
- The Speaker has written to the Minister of Foreign Affairs with a view to establishing the response of the Executive to the second reports, dated 27 February 2001, of the Portfolio Committee on Foreign Affairs and the Select Committee on Economic Affairs, respectively, on the Constitutive Act of the African Union.

It is recommended that:

- Parliament mandates the Presiding Officers to convene a meeting of African Parliamentarians on 27-28 June 2002.
- Parliament identifies the appropriate mechanisms to facilitate its interaction with the Executive regarding the AU.
- The Working Group establishes strategies and mechanisms for effective engagement with Members of Parliament, media and civil society on matters relating to the AU.
- Parliament embarks on an audit of South Africa's international obligations in terms of public international law.
- The Working Group, on behalf of Parliament, commissions research on matters relevant to the AU and NEPAD. This may include:
- The role of the African Charter and Commission on Human and Peoples' Rights in relation to the African Union.
- A comparative analysis of rules of procedures of multinational legislatures and parliamentary forums.
- Oversight of multinational institutions/structures by national parliaments.
- Economic integration in Africa _ mapping the way forward for the AU: Identification and analysis of models of economic integration and proposals on an appropriate strategy for Africa.
- Sovereignty and the full implementation of the African Union: Constitutional, legal and policy questions.
- Developing a comprehensive strategy for public awareness and civil society involvement in Parliament's engagement with matters related to the implementation of the Constitutive Act of the African Union and the processes for the full establishment of the African Union.
- The African Court vis-à-vis national judiciaries and constitutions.

Report to be considered