EXPLANATORY
MEMORUNDUM
Ratification of the Protocol Re1ating to the Establishment of the Peace and Security
Council of the African Union
1. SUMMARY
1 1 A submission is made to Parliament to request that approval be given for South
Africa to ratify the Protocol Relating to the Establishment of the Peace and
Security Council of the African Union ("the Protocol") in accordance with section
231(2) of the Constitution of the Republic of South Africa 1996 (Act No.108 of
1996).
1.2 South Africa signed the Protocol Relating to the Establishment of the Peace and Security Council of the African Union during the OAU/AU Summit held in Durban.
1.3 The Protocol envisages the establishment of a Peace and Security Council, which will be a standing decision-making organ for the prevention, management, and resolution of conflicts. It will be a collective security and early warning arrangement to facilitate timely and efficient responses to conflict and crisis in Africa.
1.4 It is recommended that South Africa ratifies the Protocol Relating to the Establishment of the Peace and Security Council of the African Union.
1.5 South Africa should ratify the Protocol as soon as possible in order to encourage other Member States of the African Union to do so and ensure that when the Protocol comes into force the PSC structures are in place.
2.BACKGROUND
2.1 The Protocol envisages the establishment of a Peace and Security Council, which will be a standing decision-making organ for the prevention, management. and resolution of conflicts. A copy of the Protocol is attached as Annexure.
2.2 On the incorporation of the OAU organs into the AU, the Lusaka Decision (AHG/DEC. 1 (XXXV11) 8(a)) states that the objectives and principles stipulated in the Cairo Declaration establishing a Mechanism for Conflict Prevention. Management and Resolution (Central Organ) constitute an integral part of the declared objectives and principles of the African Union. It further decides to incorporate the Central Organ of the Mechanism for Conflict Prevention. Management and Resolution as one of the Organs of the African Union in accordance with article 5 (2) of the Constitutive Act of the African Union and conform to standards of good governance in terms of political, economic and corporate governance. Membership will be subject to periodic review.
2.2 Member states will also have to contribute to a type of Peace Fund, which will partly be used to maintain national contingents, in member states' national defence forces, which together will form the continent's peacekeeping force. The equipping of these forces will have to be considered.
It was noted that membership would be an issue of responsibility and not benefit.
3. OBJECTIVES
3.1 The objectives for which the Peace and Security Council is established shall be to:
a. Promote peace, security and stability in Africa, in order to guarantee the protection and preservation of life and property, the well-being of the African people and their environment, as well as the creation of conditions conducive to sustainable development;
b.Anticipate and prevent conflicts. In circumstances where conflicts have occurred, the Peace and Security Council shall have the responsibility to undertake peace-making and peace-building functions for the resolution of these conflicts;
c.Promote and implement peace-building and post-conflict reconstruction activities to consolidate peace and prevent the resurgence of violence;
d.Co-ordinate and harmonize continental efforts in the prevention and combating of international terrorism in all its aspects;
e. Develop a common defence policy for the Union, in accordance with article 4(d) of the Constitutive Act;
f.Promote and encourage democratic practices, good governance and the rule of law, protect human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law, as part of efforts for preventing conflicts.
4.IMPLICATIONS
4.1 ORGANISATIONAL AND PERSO~'NEL IMPLICATIONS
Following authorisation by the PSC or the Assembly and upon a request by the Commission, Member States shall release stand-by contingents with the necessary equipment for operations as envisaged under Article 13 (3) of the Protocol.
Letter from Senior Law Advisor
Office of Chief Law Advisor (International Law)
Department of Foreign Affairs
Mr TB Ceke
PROTOCOL RELATING TO THE ESTABLISHMENT OF THE PLACE AND SECURITY COUNCIL OF THE AFRICAN UNION
1.Your request for a legal opinion of 6 September 2002 bears reference.
2.The Law Advisers have studied the draft "Protocol Relating to the Establishment of the Peace and Security Council of the African Union". We find the draft Protocol in line with international law and South Africa's international obligations, but wish to propose a number of grammatical corrections to the text, bearing in mind that the text was the final one provided by the African Union. If the Desk agrees, it may wish to bring the proposed amendments/ corrections to the attention of the AU Secretariat. The proposed corrections have also been indicated in ink directly on the text:
2.1AdPreamble
Paragraph on page 1 beginning with "RECALLING", seventh line: Change "the" to "this", to read as follows "..of the African Union, and, in this regard, requested
Paragraph on page 2 beginning with "REAFFIRMING", second line: change "on" to "of', to read "Solemn Declaration AHG/Decl.4 XXXVI) of the Conference...); in the last line remove the comma after "2001".
2.2 Ad Article4(h)
Insert the definitive article "the" before "inalienable right".
2.3 Ad Article 7(l)(l)
Within the context of the sentence, especially as the plural form "policies" is used, it appears that "action" must also be pluralised to "actions".
2.4Ad Article 7(l)(n)
It is not necessary to write "conventions" and "treaties" with capitals.
2 16Add article 16(3)
Add the definitive article "the" before "Peace and Security Council" at the end of the first sentence.
2 17Ad Article 16(6)
The last part of the sentence is not clearly formulated and the meaning thereof is not clearly expressed. It appears from the context that the idea is to create the opportunity for Regional Mechanisms with a special interest in a question being addressed before the PSC to be invited to attend such a session. If this is indeed the intended meaning, it is proposed that the sub-Article be amended to read as follows:
"Regional Mechanisms shall be invited to participate in the discussion of any question brought before the Peace and Security Council whenever such question is of special interest to a particular Regional Organisation".
2.18 Ad Article 18(1):
"Mechanism" in the first line must be "Peace and Security Council".
2.19Ad Article 21(6) and 21(7):
"States" in both the sub-Articles must be preceded by "Member" in order to ensure consistency throughout the text.
2.20 Ad Article 22(4):
The substance of this sub-Article is repeated in sub-Article 21(7), and it can therefore be deleted.
3.It has also been noticed that while "Member States" have been defined in Article 1, "Members" (of the Peace and Security Council) have not been defined.
ANDRE STEMMET SENIOR STATE LAW ADVISER(IL)
PRETORIA
16 SEPTEMBER 2002