THE NATIONAL ASSEMBLY AND THE NATIONAL COUNCIL OF PROVINCES

REQUEST FOR APPROVAL TO RATIFY THE PROTOCOL OF THE COURT OF JUSTICE OF THE AFRICAN UNION (THE PROTOCOL) IN TERMS OF SECTION 231(2) OF THE CONSTITUTION OF SOUTH AFRICA,1996 (ACT 108 OF 1996) (THE CONSTITUTION)

 

1. PURPOSE

The purpose of this memorandum is to request Parliament to approve that the Protocol be ratified in terms of section 231(2) of the Constitution.

2. SUMMARY

2.1 In terms of article 5(1 )(d) of the Constitutive Act of the African Union (the Act), one of the organs of the African Union (the AU) is "the Court of Justice", Article B of the Act provides that "the Statute, composition and functions of the Court of Justice shall be defined in a protocol relating thereto".

2.2 In view of the provisions of article 18 of the Act, AU Ministers of Justice adopted the Protocol, which was subsequently adopted by the 2nd Ordinary Session of the Assembly of the AU on 11 July 2003.

2.3 In terms of article 59(1) of the Protocol, same is open to signature, ratification and accession by Member States in accordance with their respective constitutional procedures. The Protocol was signed on behalf of South Africa by Minister Damini Zuma on 16 March 2004. The Protocol is now ready for ratification in terms of section 231 of the Constitution.

3. DISCUSSION

The Department (and the Department of Foreign Affairs) participated at both the meetings of legal experts and AU Ministers of Justice, where the provisions of the Protocol were discussed and adopted. It would seem proper that the Protocol be ratified.

4. CONSTITUTIONAL AND FINANCIAL IMPLICATIONS

The Chief State Law Adviser (International Law) and the Chief State Law Adviser opine that no provision of the Protocol is in conflict with international obligations or domestic law, respectively. The Court will be funded from the regular budget of the African Union.

5. RECOMMENDATION

It is recommended that Parliament approve that the Protocol be ratified in terms of section 231 of the Constitution.