The African Union (AU) The African Union (AU) was created in July 2000 through the signing of the Constitutive Act as the successor institution to the Organisation of African Unity (OAU), the pan-African political entity that had existed since 1963. The AU became operative in July 2002. Its rather complex institutional framework has been loosely based on the European Union and comprises the Assembly of Heads of State and Government, the Executive Council (EX), the Pan-African Parliament, the Court of Justice (not yet in operation), the Commission, the Permanent Representatives Committee (PRC), the Peace and Security Council (PSC), the Economic, Social and Cultural Council and the Financial Institutions (not yet in operation). The objectives of the African Union include achieving unity and solidarity between African states; the defense of Member States’ sovereignty; the continent’s political and socio-economic integration; the promotion of democratic principles and institutions, as well as popular participation, good governance and sustainable development; the promotion and protection of human rights; and enabling the continent to play its rightful role in the global economy and in international negotiations. The Union has the express right to intervene in a Member State when grave circumstances (war crimes, genocide or crimes against humanity) are present. Currently, the Organization has a membership of 53 states, i.e. all African countries with the exception of Morocco. Recent Developments: The African Charter on Democracy, Elections and Governance The adoption of the African Charter on Democracy, Elections and Governance (hereinafter Charter) by the Assembly on January 30, 2007[1] signifies a major step towards the realization of the Union’s democratic agenda, which is set out in Arts 3 and 4 of the Constitutive Act. The Charter can be seen as the culmination of a number of initiatives addressing the chronic problems of coups d’état, rigged elections and corruption that have plagued the continent and in particular Sub-Saharan Africa. Thus, the Charter refers, inter alia, to the Algiers Declaration on Unconstitutional Changes of Government of 1999,[2] the Lomé Declaration for an OAU Response to Unconstitutional Changes of Government of 2000[3] and the OAU/AU Declaration on Principles Governing Democratic Elections in Africa of 2002.[4] But the Charter can also be seen as consistent with a trend in international political organizations to adopt instruments, which, on the one hand, contain a list of democratic and rule of law ideals and principles that Member States should uphold and observe and, on the other hand, endow the competent organ/s with the right to impose sanctions on those Members not complying with such principles. These instruments include the Millbrook Action Programme on the Harare Declaration adopted by the Commonwealth in November 1995[5] and the Protocol of Washington of December 1992 amending the OAS Charter[6] as well as the Inter-American Democratic Charter, which was approved by the OAS in September 2001.[7] The Charter, which is remarkably long considering that most OAU/AU documents have been on the short side, consists of the following Chapters: Chapter 1 “Definitions” (Art. 1), Chapter 2 “Object” (Art. 2), Chapter 3 “Principles” (Art.3), Chapter 4 “Democracy, Rule of Law and Human Rights” (Arts 4-10), Chapter 5 “The Culture of Democracy and Peace” (Arts 11-13), Chapter 6 “Democratic Institutions” (Arts 14-16), Chapter 7 “Democratic Elections” (Arts 17-22), Chapter 8 “Sanctions in Cases of Unconstitutional Changes of Government” (Arts 23-26), Chapter 9 “Political, Economic and Social Governance” (Arts. 27-43), Chapter 10 “Mechanisms for Application” (Art. 44-45), and Chapter 11 “Final Clauses” (Arts 46-53). Article 2 lays down the twelve objectives of the Charter, which, apart from those directly relating to democratic ideals, free and fair elections and good governance, include the promotion of sustainable development and human security, the fight against corruption,[8] gender balance, etc. This extended scope of the Charter’s objectives is also evident not only in the general pronouncements (e.g. promotion of solidarity among contracting parties (Art. 38(2)) but also as regards the rights and freedoms that the Charter expects contracting parties to stipulate and implement in their domestic legal orders (e.g. mitigation of the impact of diseases and alleviation of poverty (Art. 40), provision of basic social services to the population (Art. 41), protection of the environment (Art. 42), basic education for all including the (non defined) marginalized social groups (Art. 43), etc.). The eleven principles set out in Art. 3 of the Charter correspond in large measure to the Art. 2 objectives. These include a system of representative government; regular and transparent elections; the separation of powers; the effective participation of citizens in democratic processes; transparency in the management of public affairs; condemnation of corruption and impunity and rejection of unconstitutional changes of government. The Charter has placed much emphasis on the latter principle and has made it one of its cornerstones. The term “unconstitutional changes of government” is defined in Art. 23 by reference to the following (non-exhaustive) list of circumstances: (a) any putsch or coup d’état against a democratically elected regime; (b) any intervention by mercenaries to replace a democratically elected government; (c) any replacement by armed dissidents or rebels; (d) the refusal of the incumbent government or head of state to relinquish power to the winning party or candidate after free and fair elections; and (e) any amendment of the national constitution which violates the principles of democratic change of government. It is submitted that circumstance (e) would fall within the scope of Art. 23 only if the amendment had not been ratified through a referendum or other means of popular vote because otherwise the right to self-determination would be negated. It is rather interesting that the only instance in which the Charter expressly envisages the imposition of specific sanctions (suspension of the recalcitrant Member’s right to participate in the AU activities) is in the case of unconstitutional changes of government. However, the relevant provision (Art. 25) should be read in conjunction with Art. 46 stipulating that the Assembly and the Peace and Security Council “shall determine the appropriate measures to be imposed on any State Party that violates this Charter” in conformity with the applicable provisions of the Constitutive Act and the Protocol setting up the Council. Those provisions are contained in (i) Art. 30 of the Act, which prohibits unconstitutional governments from participating in Union activities; (ii) Article 7(1)(g) of the Protocol, which authorizes the Council to impose sanctions whenever an unconstitutional change of government has taken place in a Member State; and (iii) the terms of the Lomé Declaration. One could argue that these are badly drafted provisions that create overlapping competencies. Indeed, given the existing sanctioning system, there would appear to be no good reason why the Charter, which is not institutionally linked up to the Constitutive Act, should introduce this rather confusing regime. Finally, Art. 25(5) of the Charter stipulates that perpetrators of unconstitutional changes of government may also be tried before the competent court of the Union. Considering that Art. 25(9) obliges contracting parties to bring to justice perpetrators (apparently irrespective of the country where the coup d’état took place!), the purpose of this clause is anything but clear and serious doubts should be aired regarding its practical implementation. Analysis It should be emphasized that the Charter’s entry into force will not have the effect of inserting relevant clauses in the founding documents of the African Union.[9] To that extent, the decision to give to the Charter the force of a treaty should be questioned. Moreover, it is not clear whether the Charter’s drafters intended that it replace the aforementioned Declarations of 1999, 2000 and 2002 or whether these instruments will continue to exist in parallel with the Charter. Notwithstanding these considerations, the Charter is a welcomed addition to the set of AU tools designed to eliminate the sources of Africa’s plight. The mere fact that African leaders are prepared to reconfirm their belief in human rights, democracy and the rule of law is a significant development. However, there is a sad reality that must be addressed: there are many African leaders who one day applaud the conclusion of instruments such as the Democracy Charter and the next day continue to violate even the most fundamental of democratic principles. The proposed merger between the African Court of Justice and the African Court of Human and Peoples’ Rights In 1998, the OAU Assembly completed a Protocol to the African (Banjul) Charter on Human and Peoples’ Rights in order to establish a Human Rights Court. The Court was to assist the African Commission of Human Rights, which had been operative since 1987.[10] The Protocol entered into force on January 25, 2004 but its implementation has proceeded quite slowly. Thus, it was only during the last meeting of the Executive Council (June 2007) that the Court’s structure and staff were approved.[11] It has yet to hear any cases. Although the creation of this Court was conceived well before the advent of the African Union, apparently the drafters of the Constitutive Act did not take it into consideration when the endowed the Union with the African Court of Justice as its “principal judicial organ.”[12] However, after the Union became operative and before the Protocol of 1998 came into force, the relationship between the two courts was addressed and it was determined to keep them as “separate and distinct” institutions.[13] But the Assembly reversed this decision in July 2004 and adopted a Nigerian proposal to merge the two institutions into one and, pending the merger, to proceed with the creation of the Human Rights Court.[14] The blueprint for the merger, which was based on an initial draft prepared by former ICJ President Mohammed Bedjaoui, was drafted in May 2006 by a group of legal experts and Member States’ representatives. The instrument, Protocol on the Statute of the African Court of Justice and Human Rights, included a Statute of the Merged Court as an appendix.[15] The documents were submitted the following month to the Executive Council[16] and they are still under consideration. Analysis Although most commentators appear to applaud the move towards the creation of a single judicial organ[17] and one has referred to the two courts as a “luxury,”[18] others observe that Africa is in need of both and that their parallel operation could ensure the observance of the rule of law on the continent.[19] While the large number of AU organs has been criticized,[20] there is an array of other organs that could usefully be merged or even abolished. Any final outcome, however, will be complicated by the documents’ poor draftsmanship. In particular, the Protocol does not even specify that it will form part of both the Constitutive Act and the Banjul Charter. Moreover, the text of the Protocol assumes that the Protocol on the Court of Justice will not enter into force before it has been adopted. This follows from Art. 7, which refers to the provisional validity of only the 1998 Protocol and not of the Court of Justice Protocol as well. The latter’s entry into force might not be far off: 13 out of the required 15 ratifications have already been received. Furthermore, according to Art. 8(2), if a Member State is a contracting party to both the existing Protocols, the signing of the Merged Court Protocol “shall constitute consent to be bound,” unless an intention to the contrary has been expressed. Notwithstanding that this provision should ensure the Protocol’s prompt entry into force, it also means that domestic constitutional procedures will not be followed. In short, it will be the Member States’ governments that, without seeking the approval of national Parliaments, will decide the nature of the transition to the Protocol of the Merged Court. Arguably, that instrument differs considerably from the 1998 Protocol and the Protocol of the Court of Justice. When the Merged Court Protocol enters into force, it will replace the other two instruments. Considering that this will happen when 15 Member States have ratified it (Art. 9(1)), and taking into account that the 1998 Protocol has been ratified by 24 Member States, countries that are contracting parties to the 1998 Protocol and, for whatever reason, do not wish to accept the Merged Court, shall be left with no other options than either non-participation in any of the new judicial organs or participation solely in the Merged Court. This is not merely a rhetorical argument. Originally, OAU and AU Member States could choose whether they wished to be part in both, either or none of the judicial organs. But the Protocol of the Merged Court does away with this choice, since it will create a joint General Affairs Section, which shall be composed of eight judges and have the Court of Justice’s competencies, and a Human and Peoples’ Rights Section (seven judges). It is well-known that African states have traditionally shunned institutional modes of dispute settlement and have tended to regard concern for their human rights records as a pretext for undermining their sovereignty.[21] The OAU never had a proper judicial organ: the Commission of Mediation, Conciliation and Arbitration never became operational and the Mechanism for Conflict Prevention, Management and Resolution, created in 1993, failed to make a significant mark. Therefore, the provision for a Court of Justice in the Union’s Constitutive Act as well as the operationalization of the Human Rights Court, which completes the human rights protection system, should have made African states proud of their achievement (after all, even the European Union lacks a proper Human Rights Court). Instead, AU Member States have created a legal labyrinth which they have belatedly realized cannot be easily undone. Democracy, the rule of law and the protection of human rights are a costly business. None can be achieved on the cheap. If Member States wish to live up to the expectations created by the lofty objectives and principles of the African Union, they should abandon the Merged Court project and ensure that the Human Rights Court is up and running promptly and that the Court of Justice is allowed to play its role as the Union’s principal judicial organ. Konstantinos D. Magliveras School of Mediterranean Studies University of the Aegean Footnotes: 1 See Assembly, Eighth Ordinary Session, Decision on the African Charter on Democracy, Elections and Governance, AU Doc. Assembly/AU/Dec. 147 (VIII). 2 There would appear to be some mistake in the wording of the Charter, as no such Declaration was ever adopted. On the contrary, the 35th Ordinary Session of the OAU Assembly held in Algiers in July 1999 adopted Decisions AHG/Dec. 141 (XXXV) and AHG/Dec. 142 (XXXV) on unconstitutional changes of government. 3 AU Doc. AHG/Decl. 5 (XXXVI). 4 AU Doc. AHG/Decl. 1 (XXXVIII). 5 Reproduced in (1997) COMMONWEALTH Y.B 51. For commentary, see K. Magliveras, Expulsion from Participation in International Organisations: The Law and Practice Behind Member State’ Expulsion and Suspension of Membership, KLUWER L. INT’L, 1999, pp. 186 et seq. 6 Reproduced in 33 ILM 1005 (1994). For commentary, see Magliveras, ibid, pp. 171-174. 7 Reproduced in 40 ILM 1289 (2001). For a comparison between the two Charters, see E.R. McMahon, The African Charter on Democracy, Elections and Governance: A Positive Step on a Long Path, Open Society Institute, Africa Governance Monitoring & Advocacy Project, May 2007. Note that although the African Charter has taken the form of a multilateral treaty, the OAS instrument has been adopted by the General Assembly as a resolution. 8 See AU Convention on Preventing and Combating Corruption of 2003, in force since August 2006, reproduced in 43 ILM 5 (2004). It has currently been ratified only 24 Member States. Generally, see K. Magliveras and G. Naldi, The African Union and the predecessor Organization of African Unity, Kluwer Law International, 2004, pp. 167 et seq. 9 The Charter will become operative once 15 Member States have ratified it. To date, there have been no ratifications and the last (10th) signature was by Burkina Faso on 2 August 2007. 10 Reproduced in 9 AFR. J. INT’L COMP. L. 953 (1997). For analysis, see G. Naldi and K. Magliveras, Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples’ Rights 16 NETH. Q. HUM. RTS. 431 (1998); G. NALDI, THE PROTOCOL ON THE ESTABLISHMENT OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS; VINCENT O. ORLU NMEHIELLE, THE AFRICAN HUMAN RIGHTS SYSTEM: ITS LAWS, PRACTICE AND INSTITUTIONS, 259 (Martinus Nijhoff ed.) 2001; and N.J. Udombana, Toward the African Court on Human and Peoples’ Rights: Better Late than Never 3 YALE HUM. RTS. & DEV. L. J. 45 (2000). 11 Executive Council, 11th Ordinary Session, 25-29 Jun e 2007, Decision on the Structure of the African Court on Human and People’s Rights, AU Doc. EX.CL/Dec. 351 (XI), available at www.africa-union.org. 12 See Article 2(2) of the Protocol of the Court of Justice of the African Union, which was adopted on July 11, 2003, reproduced in 13 AFR. J. INT’L COMP. L. 115 (2005). For analysis, see K. Magliveras and G. Naldi, The African Court of Justice 66 HEIDELBERG J. INT’L L. 187 (2006). 13 See Assembly, Decision on the Draft Protocol of the Court of Justice of the African Union, 11 July 2003, AU Doc. Assembly/AU/Dec. 25 (II), in which the Assembly followed the recommendations of the Executive Council, see AU Doc. EX/CL/58 (III) and AU Doc. EX/CL/Dec. 58 (III) (July 8, 2003). See generally R. MURRAY, HUMAN RIGHTS IN AFRICA: FROM THE OAU TO THE AFRICAN UNION 68-69 (2004). 14 See Assembly, Decision on the Seats of the African Union, AU Doc. Assembly/AU/Dec. 45 (III), para. 4 (July 2004) . It was reinforced by another Assembly Decision, see AU Doc. Assembly/AU/Dec. 83 (V) (July 2005). 15 See Meeting of the PRC and Legal Experts on Legal Matters, May 16-19, 2006, AU Doc. EX.CL/211 (VIII) Rev.1, Annex I. 16 See Report on the Draft Single Legal Instrument on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, AU Doc. EX/CL/253 (IX), Annex II (2006). 17 See K. Kindiki, The Proposed Integration of the African Court of Justice and the African Court of Human and Peoples’ Rights: Legal Difficulties and Merits, 15 AFR. J. INT’L COMP. L. 138 (2007) and F. VILJOEN, INTERNATIONAL HUMAN RIGHTS LAW IN AFRICA 456 (2007) et seq. The latter author’s stance seems to have shifted since publishing F. Viljoen and E. Baimu, Courts for Africa: Considering the Co-Existence of the African Court on Human and Peoples; Rights and the African Court of Justice, 22 NETH. Q. HUM. RTS. 241 (2004). 18 See N.J. Udombana, An African Human Rights Court and an African Union Court: A Dutiful Duality or a Needless Duplication? 28 BROOK. J. INT’L L. 811 (2003). 19 See Magliveras and Naldi, The African Court of Justice, op. cit., pp. 212-213. 20 See K. Magliveras and G. Naldi, The African Union – A New Dawn for Africa? 51 INT’L & COMP. L.Q. 415, 419 (2002). 21 See G. Naldi, Future Trends of Human Rights in Africa in THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS: THE SYSTEM IN PRACTICE, 1, 2-5. (M. Evans and R. Murray eds. 1986-2000) (2002). |
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