First 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 Council of Provinces. The primary focus of the Working Group was to consider the implementation of the Constitutive Act of the African Union
B. Composition of the Working Group
The following Members were appointed to the Working Group:
Ms G N M Pandor (Chairperson)
Mr M L Mushwana
Mr M E Surty
Mr M A Sulliman
Ms J N Vilakazi
Ms C _S Botha
Mr P A Matthee
C. 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 the process of implementation of the African Union.
D. Meetings of the Working Group
The working group met on 19 February 2002 and on 3 June 2002. Individual Members of the Working Group also attended meetings of the National Assembly Working Group on the African Union, as well as the two seminars on the African Union that were held at Parliament.
E: Recommendations
The working group considered the following instruments: The Constitutive Act of AU; the protocol establishing the Pan-African Parliament, the protocol establishing the African Court of Justice and the South African Constitution. The comments below arise from comments and discussions within the working group.
These instruments were analysed against the established principles of Public International law. They were weighed against the South African Constitution as dictated to by section 234, which stipulates:
In order to deepen the culture of democracy established by the Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution.
Section 233:
When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law to any alternative interpretation that is inconsistent with international law.
And lastly section 232, which provides:
Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
For comparison the UN Charter and the Statute of International Court were also analysed.
In the case of the PAP and the African Court of Justice, perhaps there may still be an opportunity to raise the issues if our comments are found valid and reservations may still be entered (registered) during the time of signing, in the event that the points can no longer be canvassed with other countries or blocs with which South Africa has a good relationship.
I. Constitutive Act of the AU:
Ø The language of the Act is not gender sensitive/gender neutral (e.g. references to Chairman)
Ø The Report of the Select Committee on Foreign Affairs highlighted the following:
- Possible contradictions between provisions in the Act (e.g. provisions regarding accelerating political and socio-economic integration, provisions relating to a common defence policy; provisions relating to right of intervention in member States
- Possible infringement of sovereignty of States
We recognise the significance of the Constitutive Act being adopted by the Heads of State and the framework which it sets in place. But having regard to the developments that have already occurred on the continent between countries and within regions, it is important for the following to be noted:
Ø The Act makes reference to accelerating political and socio-economic integration. Questions arise as to what will happen to the existing agreements that South Africa has entered into. Are these going to fall away? How are they going to be part of the existing framework? Parliament may need to assist in this process by examining the existing agreements and by recommending areas for review or further action. Consideration should be given to providing resources for Parliament to conduct such a review.
Ø The Act makes reference to a common defence policy without giving any guidance as to what this may mean. Furthermore, important principles that have informed South Africa's current policy on defence matters, such as the promotion of peace, the encouragement of conflict resolution, and so forth, are not highlighted sufficiently.
Ø There seems to be a possibility of overlapping of the powers of the Assembly with those of the Executive Council. These need to be unravelled as this might lead to duplication.
Ø The provision dealing with the appointment of the judiciary needs tightening up as at the end there is a random picking of those to retire first: Is it not possible to tie these to some competence, if only to maintain a balance between the need for rotation on one side and building of retention and transfer of skills within the judiciary on the other. The matter of removal from office will be dealt with when dealing with the African Court of Justice (ACJ).
II. Protocol to the Treaty Establishing the African Economic Community relating to the Pan-African Parliament
Ø Article 5(4)(d): The definition of what would constitute "misconduct" should be clearly defined in the Rules of Procedure of the PAP as the rules of debate of some African countries reflect basically four different systems in Africa, viz French, West-Minster, Arabic, Constitutionalism (RSA).
Ø Article 6: Voting. We believe that at least for the period when membership of the PAP is based on the membership of the Parliaments of the Member States, the Members are representing their legislatures and therefore should be voting by way of a mandate received from their legislatures, and not as individuals. When the PAP has developed to such a stage that Members campaign themselves for seats in the PAP then they vote as they please.
Ø Article 8: Immunities. We believe that a comparison should be made of the immunities, which members of the SA Parliament receive as opposed to the immunities which members of the PAP have. SA Parliament to be aware of any "clashes" _ particularly since the immunities could be very broad and far-reaching.
Immunities should as far as possible be linked to the discharge of duties as a member of the PAP.
Ø Article 10: Allowances.
The understanding of the South African Parliament has always been that the individual Parliament's would be responsible for the salaries of their Members to the Pan-African Parliament (PAP). These persons would be full Members of that Parliament and would therefore receive that salary. In terms of allowances, the issue that would have to be looked at, would be the subsistence and travel allowances (S&T). It is that component that would have to be incorporated in the budgeting.
It therefore means that the governments on the continent must be aware that in budgeting for 2003 and beyond, they have to ensure that in their budgets they include provision for allowances and travel of the Members of the Pan-African Parliament. (It is anticipated that the first sitting of the Pan-African Parliament will take place in 2003)
Consideration should also be given to the question of what support would the individual Parliaments have to provide to their Members of the PAP.
Ø Article 12(5): We would suggest that the President and the four Vice Presidents be accountable for the management and administration of the PAP, but that the Clerk and Deputy Clerks be responsible for the management and administration of PAP. This position links up with the comments that we have previously made regarding the continuity of membership of the PAP. It is likely that the President and other Officers will not have the continuity in the same way as the Clerk and Deputies have. The latter will be the institutional memory of the PAP, and therefore it would be more appropriate if they were responsible for administration and management of the PAP.
Ø It is envisaged that the PAP will ultimately have full legislative functions. The question is should the PAP's legislative function be limited to setting norms and standards that domestic law must incorporate, or should the PAP have full legislative powers so that it produces law that each of the Member States have to base their practice upon?
Ø It would be important that a basic set of principles and rights are agreed upon in order to reduce the potential for conflict in the area of Human Rights law. We need to give recognition to the fact that Charters on Human Rights already exist on the continent, as formulated by the Organisation of African Unity.
It would be vital that the African Union and the PAP, in particular, examine those Charters in order to look at whether they are still appropriate in regard to current conditions, or whether there is a need to review and amend those instruments.
III. African Charter on Human and People's Rights _ African Court on Human and People's Rights
The preamble to this protocol provides:
"Firmly convinced that the attainment of the objectives of the African Charter on Human and People's Rights requires the establishment of an African Court on Human and People's Commission to complement and reinforce the functions of the African Commission on Human and People's Rights."
Article 6 on Admissibility of Cases provides:
(3) The Court may consider cases or transfer them to the Commission.
Article 8, meanwhile, provides:
The Rules of Procedure of the Court shall lay down the detailed conditions under which the Court shall consider cases brought before it, bearing in mind the complementarity between the Commission and the Court.
Ø The roles of the Court and the Commission have to be clarified in quite a distinct way so that we see how they are distinguished from each other, then we can accept the complementarity between the two. We accept that they must liase because the basis of appeal to the Court would be the infringement of rights.
The Constitutive Act in Article 26 provides: Interpretation
The Court shall be seized with matter of interpretation arising from the application or implementation of this Act_.
Article 6(3) of the Protocol on the Court and article 26 of the Constitutive Act need to be reconciled. Under normal circumstances courts are usually the last ports of arbiter. Article 4 of the Protocol on the Court provides powers to the Court to provide an opinion on any legal matter relating to the Charter or any other relevant human right instruments but excludes any subject matter being examined by the Commission.
It is unusual for an arrangement in which a court would consider a case of transfer it to a commission.
Ø We believe that the Court must have the power to determine the outcome.
Article 10 of the Protocol of the Court provides for free legal representation where the interests of justice so require. It is accepted that this provision may be there to ensure accessibility of justice to all. However, it would seem that the wording is such that it is open to abuse as there are not stipulations regarding conditions for qualification for free legal representation.
Ø We would propose the inclusion of a conditionality, such as "free legal representation where the interests of justice and administration so require, as determined by the Assembly or the Pan-African Parliament in legislation."
Ø Article 15 regulates the term of office of judges. Article 15(2) might need to be tidied up, as it is too informal to such an institution. The comments raised above under the Constitutive Act article regulating this are applicable here.
Ø Article 17(3) grant judges of the Court immunities extended to diplomatic agents in accordance with international law. Article 17(3) and its full implications have to be examined as it raises a set of complex problems with respect to natural justice.
Ø Article 17(4) provides:
At no time shall the judges of the Court be held liable for any decision or opinion issued in the exercise of their function.
The formulation of article 17(4) needs to be carefully reviewed because the level of licence that it grants appears to be excessive and does not link to any known standards. It is far too wide and needs to include certain checks and balances.
Ø Article 19(1) provides for cessation of office. This article is also intended to reinforce the independence of the judiciary. Consideration should be given to the need to ensure that due process is available to judges in such instances.
It may also be useful to consider providing for members of the judiciary to approach the Assembly in cases where they hold the view that their rights have been infringed.
IV. African Charter on Human and People's Rights _ Commission on Human and Peoples' Rights
Ø Article 41 of the Charter provides for the appointments to the Commission. It would be important to look at the process with a view to identifying how greater transparency, public participation and the involvement of civil society can be introduced into the process.
F. Conclusion
The Working Group had seen this initial process as an interim process preparing the initial thinking of the two Houses, and would therefore recommend that, subject to the concurrence of the National Assembly, a joint working committee on the African Union be established.