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 Development: A new way of dealing with unconstitutional changes of government: the case of Madagascar Unlike the predecessor Organisation of African Unity (OAU), a distinctive feature of the African Union (AU) is its resolution to address unconstitutional changes of government. These are dealt with primarily by a 'soft law' instrument, namely the Declaration on the Framework for a OAU Response to Unconstitutional Changes of Government adopted in 2000,[1] and by the 'hard law' contained in Article 30 of the Constitutive Act. The latter stipulates that governments coming to power through unconstitutional means shall be barred from AU activities. Even though this framework has been utilized on a number of occasions in the past with a varying degree of success, the way it was employed in the recent events in Madagascar marks a new approach and arguably moves towards multilateralism. In particular, in March 2009 the incumbent President Ravalomanana announced that he was 'handing the power' to the military, which then transferred power to 35 year old Andry Rajoelina, the mayor of the capital Antananarivo. Madagascar has always been mired in coups d'état and indeed the country had been banned from participating in the AU inaugural Summit (July 2002) because Ravalomana had overthrown the then President Ratsiraka. The day after the army 'offered' the presidency to Rajoelina, the Peace and Security Council (PSC), the AU organ that acts as a firefighter whenever there is a crisis even if neither the peace nor the security of the continent is at risk, met and, by invoking Article 30 and the Lomé Declaration, resolved to suspend Madagascar from participation in AU activities.[2] The promptness of the reaction should have taken everybody by surprise including Muammar Qaddafi, the then AU Chairperson, who had called Rajoelina to announce that he would recognize the new regime![3] As stated in the PSC Decision, Madagascar "mark[ed] another serious setback in the ongoing democratization processes on the continent and reinforces the concern over the resurgence of the scourge of coups teat in Africa". In effect, the PSC wanted to send a message that it would not think twice before imposing sanctions if this were to reinforce the process of democratization. The AU did not wait to see how the imposed suspension would play out with the new regime but combined it with mediation between the opposing political sides.[4] The turning point was the talks in Maputo, the capital of Mozambique, on 5-10 August 2009 under the mediation of former Mozambican President Joaquim Chissano. They concluded with the signing of the Maputo Political Accord on Madagascar, the roadmap to returning the country to normalcy; the Charter of the Transition; the Charter of Values, which promotes the spirit of non-violence, the culture of tolerance, pardon, reconciliation and mutual respect; and the agreement to annul the criminal charges that had been brought against political and military personalities in the past. On 25 August 2009, a second round of negotiations got off the ground in Maputo to map out the implementation of the Political Accord. While these rounds of talks were under AU auspices, a crucial role was played by an ad hoc entity, the International Contact Group on Madagascar, whose inaugural meeting took place on 30 April 2009. The AU Assembly has taken a rather back seat approach and left the initiative to the Contact Group.[5] It was actually the latter, which on 22 July 2009 resolved to hold the Maputo talks with the participation of representatives from the AU, the Common Market for Eastern and Southern Africa (COMESA), the European Union (EU), the Indian Ocean Commission (IOC), the Organisation Internationale de la Francophonie (OIF), the Southern African Development Community (SADC), the United Nations, Libya (as the holder of the AU chairmanship), Ethiopia (as the country chairing the PSC in July 2009) and the UN Security Council.[6] The second round of negotiations dealt with who was going to run the transitional government and whose task it will be to prepare Madagascar for elections in October 2010. It ended without consensus, even though it was suggested that Rajoelina should be named as the interim president. Had this proposal been accepted, it would have questioned the promptness with which the AU (and the SADC which followed suit) suspended Madagascar from participation. To put it otherwise, the AU (and the SADC) might have been seen as acting prematurely and possibly against the will of the Malagasy people. Shortly thereafter, Rajoelina established his 'government of National Unity' and excluded the other political powers. The PSC reacted by threatening 'appropriate measures, including targeted sanctions', if the terms and conditions of the Maputo Agreements were not adhered to.[7] The PSC invoked solely the Lomé Declaration and the Protocol establishing the PSC but not the Constitutive Act. This was rather problematic considering that the Act is the guiding instrument for all organs' activities and whether specific actions can or cannot be taken should be determined pursuant to its provisions, especially when they contain measures of a punitive nature. On 6 October 2009, the Contact Group convened for a third meeting; it led to negotiations on 3 November 2009 and to the following arrangement: Rajoelina will remain President until the October 2010 elections but he will have to share executive powers with two other co-presidents to be nominated by former Presidents Ravalomanana and Albert Zafy. Since major decisions require the approval and the signing by all of them, effectively each of them has a veto power, which, if exploited for political gains, could be disastrous. However, at the same time it affords them equality, which could ensure that the Maputo Agreements are respected and implemented. **** In the case of Madagascar, the combination of prompt sanctions and multilateral diplomacy seems to have worked. Of course it remains to be seen whether what was agreed will be carried out and whether it will be enough to ensure that the country will finally enjoy a peaceful parliamentary life. Even though there is no doubt that the AU will regard it as a success story, a number of specific aspects ought to be highlighted. First, the AU left the handling of the case to one particular organ (the PSC) and the crisis was not discussed, as it should have, in the Executive Council and in the Assembly of the AU. Second, the AU was happy to let an ad hoc group (the International Contact Group) and regional players (the SADC and former President Chissano) to play the central role and take the initiative in the mediation. Third, the AU has not addressed the issues that have left Madagascar in a state of continuous political instability (weak political institutions, widespread corruption, poverty, economic dependence on foreign investments, etc.). These are not isolated problems but are interrelated and concern most Member States as well. The AU should use the stick but at some stage the carrot should also appear. Dr. Konstantinos D. Magliveras Associate Professor in the Law of International Organizations School of Mediterranean Studies, University of the Aegean, Greece January 2010 Footnotes: 1 AU Doc. AHG/Decl. 5 (XXXVI). 2 AU, Peace & Security Council, Communiqué PSC/PR/COMM (CLXXXI) 181st Meeting (March 20, 2009). 3 Madagascar and Africa: A coup that is not yet irreversible, ECONOMIST, March 28, 2009, 56. 4 O. Maunganidze, MADAGASCAR: ANATOMY OF A RECURRENT CRISIS, Institute for Security Studies Situation Report, October 16, 2009, at 5, available at http://www.iss.co.za/index.php?link_id=3&slink_id=122&link_type=12&slink_type=12&tmpl_id=3. 5 AU Assembly, Decision on the Activities of the PSC and the State of Peace and Security in Africa, AU Doc. Assembly/AU/Dec. 252(XIII) (July 3, 2009) at para. 11. 6 International Contact Group on Madagascar, Communiqué of the Consultative Meeting on Madagascar, July 22, 2009, available at http://www.africa-union.org/root/ua/Conferences/2009/juillet/PSC/22juillet/Communiqu%E9%20Madagascar_Eng.pdf. 7 Press Statement, AU Peace & Security Council, Press Statement of the 202nd Meeting, PSC/PR/BR (CCII) (September 10, 2009). |
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