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The New African Union and Its Constitutive Act

Published online by Cambridge University Press:  27 February 2017

Corinne A. A. Packer  and
Donald Rukare
Corinne A. A. Packer
Affiliation:
Netherlands Institute of Human Rights, Utrecht University, the Netherlands
Donald Rukare
Affiliation:
Kampala, Uganda
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Type
Current Developments
Information
American Journal of International Law , Volume 96 , Issue 2 , April 2002 , pp. 365 - 379
Copyright
Copyright © American Society of International Law 2002

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References

1 Constitutive Act of the African Union, July 11, 2000, at <http://www.oau-oua.org/LOME2000/introductory_note.htm> [hereinafter CA].

2 Organization of African Unity, Press Release 52/2001, The Constitutive Act of the African Union Attains the Legal Requirement for Entering into Force (Apr. 27, 2001), at <http://www.oau-oua.org>.

3 Treaty Establishing the African Economic Community, June 3, 1991, 30 ILM 1241 (1991), available at <http://www.oau-oua.org> [hereinafter AEC Treaty]; see also OAU, The African Economic Community, at <http://www.oauoua.org/oau_info/documentation.htm> (visited Mar. 1, 2002).

4 See the BBC open chat forum, “African Union: Can It Do Better Than the OAU?” at <http://news.bbc.co.uk/hi/english/talking_point/debates/african/newsid_1356000/1356021.stm>.

5 See generally Zdenek Cervenka & Legum, Colin, The Organization of African Unity in 1978: The Challenge of Foreign Intervention, 11 Afr. Contemp. Rec.: Ann. Surv. & Docs. 1978-1979 Google Scholar, at A25.

6 See generally Cervenka, Zdenek, OAU’s Year of Disunity, 10 id. 1977-1978,Google Scholar at A57.

7 See generally Cervenka, Zdenek & Legum, Colin, The Organization of African Unity in 1979,12 id. 1979-1980 Google Scholar, at A58.

8 Twice in four months in 1982 the OAU failed to summon a quorum because of this split and the greater preoccupation of states with their economic crises. See generally Zdenek Cervenka & Legum, Colin, The OAU in 1982: A Severe Setback for African Unity, 15 id. 1982-1983 Google Scholar, at A42.

9 See generally, e.g., The Oau After Twenty Years (Yassin E1-Ayouty & I. William Zartman eds., 1984); Legum, Colin, The OA U After Twenty Years: The Record of Failures and Successes, 16 Afr. Contemp. Rec. : Ann. Surv. & Docs. 1983-1984 Google Scholar, at A61.

10 See generally, e.g., Zinaida Tokarev, Organization of African Unity: 25 Years of Struggle (Clance Nsiah Jaybex trans., 1989) ;H. Asobie, Assist, The OAU in the Year 2000: Some Informed Projections, 14 Nigerian J. Int’l Aff. 259 (1988)Google Scholar; Olusanya, G. O. , Reflecting on the First Twenty-five Years of the Organization of African Unity, id. at 67 Google Scholar; Tekle, Amare, The Organization of African Unity at Twenty Five Years: Retrospect and Prospect, Afr. Today, 3d/4th Quarters 1988 Google Scholar, at 7.

11 In the preface to the second (revised) edition of the OAU’s Lagos Plan of Action, it is noted that “[t]he objectives set out are both essential and hard to achieve [I] t is no easy matter to implement the strategies here proposed.” Organization of African Unity, Lagos Plan of Action For the Economic Development of Africa: 1980-2000, at xx (1981).

12 Id. at iv, 126.

13 Yassin, E1-Ayouty, An OAU for the Future: An Assessment, in The Organization of African Unity After Thirty Years 179, 179 (Yassin E1-Ayouty ed., 1994)Google Scholar [hereinafter OAU After Thirty Years].

14 Id.

15 The slogan used at the founding of the OAU rang truer than ever—now less by inclination than necessity. Rofhchild, Donald, Conclusion to Africa in The New International Order: Rethinking State Sovereignty and Regional Security 227, 232 (Edmond J. Keller & Donald Rothchild eds., 1996)Google Scholar.

16 Even before the organization celebrated its tenth anniversary, the issue of national sovereignty was seen as a pressing problem. See, e.g., Addona, A. F. The Organization of African Unity 170 (1969)Google Scholar.

17 A, Ali. Mazrui, , Towards Containing Conflict in Africa: Methods, Mechanisms and Values, 2 E. Afr. J. Peace & Hum. Rts. 81, 81 (1995)Google Scholar.

18 El-Ayouty, supra note 13, at 180.

19 See, e.g., id. at 186; Legum, Colin, The Organisation of African Unity—Success or Failure? 51 Int’l. Aff. 208 (1975)Google Scholar.

20 Once the organization did get involved in an internal conflict (in Chad). The initiative was likely taken up because of its peculiar international dimensions. James O. C. Jonah, The OAU: Peace Keeping and Conflict Resolution, in OAU After Thirty Years, supra note 13, at 3, 9; see also infra note 22.

21 Mazrui, supra note 17.

22 In 1991 the OAU supervised a formal cease-fire between warring Rwandese parties. The peacekeeping mission in Chad, however, had not been a success. For more detail, see Jonah, supra note 20, at 12-13.

23 See generally, e.g., Sesay, Amadu & Fasehun, Orobola, Possible Futures for the OAU in the World System, in Africa Projected: From Recession To Renaissance By The Year 2000? at 133 (Timothy M. Shaw & Olajide Aluko eds., 1985)CrossRefGoogle Scholar.

24 This idea was proposed by Sierra Leone as early as 1981. See, e.g., Jonah, supra note 20, at 7-8. For more detail, see, for example, Cedric de Coning & Solomon, Hussein, Enhancing the OAU Mechanism for Conflict Prevention, Management and Resolution, 19 Politeia 13, 19 (2000)Google Scholar.

25 See, e.g., M, Carolyn. Shaw, , Organization of African Unity and Its Potential for Resolving African Conflicts, 38 Afr. Q. 1, 16 (1998)Google Scholar. See generally Sesay, Amadu, Ojo, Olusola, & Fasehun, Orobola, The OAU After Twenty Years (1984)Google Scholar.

26 See, e.g., Leistner, Erich, Prospects for the OAU, 14 Afr. Insight 122, 125 (1984)Google Scholar.

27 Shaw, supra note 25, at 14. In this connection, an interesting comparative analysis between the OAU and the Organisation for Security and Co-operation in Europe is found in Packer, John, Conflict Prevention by the OAU: The Relevance of the OSCE High Commissioner on National Minorities, 1996 Afr. Y.B. Int’l L. 279 Google Scholar.

28 See de Coning & Solomon, supra note 24, at 15; Jonah, supra note 20, at 4.

29 See generally Africa In The New International Order, supra note 15.

30 Mazrui, supra note 17, at 85.

31 De Coning & Solomon, supra note 24, at 26-27.

32 Shaw, supra note 25, at 6.

33 For a survey of views, see Shaw, supra note 25.

34 See, for example, in chronological order, K. Mathews, The Organization of African Unity, in African Regional Organizations 49 (Domenico Mazzeo ed., 1984); Asobie, supra note 10; Tekle, supra note 10; El-Ayouty, supra note 13, at 184; Shaw, supra note 25.

35 Jonah, supra note 20, at 5-6.

36 Azzedine Layachi, The OAU and Western Sahara: A Case Study, in OAU After Thirty Years, supra note 13, at 27.

37 For the Lagos Plan of Action and the AEC Treaty, see notes 11 and 3 supra.

38 It was apparent that no African state was economically powerful enough to construct a modern economy alone. Although the region as a whole had the resources to support large and efficient industrial complexes, no individual state or subregion could do so alone. For discussion, see generally H, Reginald. Green, & Seidman, Ann, Unity or Poverty? The Economics of Pan-Africanism (1968)Google Scholar. For detail on the AEC and its possible impact, see Danso, Kwaku, The African Economic Community: Problems and Prospects, Afr. Today, 4th Quarter 1995 Google Scholar, at 31.

39 See OAU, The African Economic Community, supra note 3.

40 Danso, supra note 38, at 34.

41 AEC Treaty, supra note 3, Art. 6.

42 Danso, however, worries that intracommunity trade is very low and that much work must therefore be done to increase levels of trade: in 1988, for instance, trade among ECOWAS members was only 4.9% of its total trade and in UDEAC (Union Douanière et Economique des Etats de I’Afrique Centrale) it was merely 3.6%. Danso, supra note 38, at 35.

43 Until the African Union becomes functional, the administrative hub of the AEC is the general secretariat of the OAU. The AEC is currently headed by the secretary-general of the OAU.

44 Sirte Declaration, Sept. 9, 1999, at <http://www.libya-un.org/speeches/sirte-990909.pdf>.

45 The OAU originally consisted of fifty-four states. However, Morocco suspended its membership in 1984 over the issue of the Western Sahara.

46 Held in Lomé, Togo.

47 The original signatories were Algeria, Benin, Burkina Faso, Burundi, Cape Verde, the Central African Republic, Chad, Djibouti, Ethiopia, Equatorial Guinea, Gabon, Gambia, Ghana, Guinea Bissau, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Niger, Sahrawi Arab Democratic Republic, Senegal, Sierra Leone, Sudan, Togo, and Zambia.

48 At the fifth extraordinary session of the Assembly of Heads of State and Government, held again in Sirte, Libya.

49 CA, supra note 1, Art. 28.

50 This is the most recent update on ratifications as of March 4, 2002.

51 List updated at the thirty-seventh OAU summit in Lusaka. OAU, News, Update on the Ratification of Constitutive Act (July 7, 2001), at <http://www.oau-oua.org/Lusaka>.

52 An agreement was reached on March 29, 1991, between the Rwandese parties to the conflict to establish a formal cease-fire that would be supervised by the OAU. The OAU secretary-general appointed a group of neutral military observers under his supervision that was to observe the cease-fire and report on violations by the parties. Jonah, supra note 20, at 13.

53 AEC Treaty, supra note 3, Art. 18.

54 Coincidentally, U.S. Secretary of State Colin Powell chose to stress totalitarianism in Africa as one of his greatest concerns upon his visit to the region, which coincided with the entry into force of the Union. Nicol, Degli Innocenti, Powell Condemns Mugabe for Zimbabwe Crisis, Fin. Times (London), May 26, 2001 Google Scholar, at 1.

55 OAU 37th Summit, Report of the Secretary-General on the Implementation of the Sirte Summit Decision on the African Union, OAU Doc. EAHG/Dec.l (v) (July 9, 2001), at <http://www.oau-oua.org/Lusaka/Documents.hrm>.

56 The OAU Assembly is also empowered to establish additional bodies as deemed necessary, although this authority is limited to specialized commissions. OAU Charter Art. XX.

57 CA, supra note 1, Arts. 17-19.

58 For instance, CA Article 17, on the Pan-African Parliament, provides as follows: “1. In order to ensure the full participation of African peoples in the development and economic integration of the continent, a Pan-African Parliament shall be established. 2. The composition, powers, functions and organization of the Pan-African Parliament shall be defined in a protocol relating thereto.”

59 Decision on the Draft Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament, OAU Doc. EAHG/Dec.2(V) (2001).

60 OAU 37th Summit, Introductory Note of the OAU Secretary-General (July 2, 2001), at <http://www.oau-oua.org/Lusaka/Documents.htm>.

61 The Assembly will meet once a year in ordinary session, with the possibility of extraordinary sessions called by a two-thirds majority of the member states. Similarly, decisions and resolutions are to have the support of a two-thirds majority, whereas questions of procedure require only a simple majority. Thus, in procedural terms, the Assembly of the Union will essentially be identical to the OAU Assembly.

62 CA, supra note 1, Art. 9(h).

63 Id., Art. 22.

64 Compare id., Art. 20, with OAU Charter Arts. XVI-XVII.

65 CA, supra note 1, Art. 24(1).

66 It is composed mainly of ministers of foreign affairs (although governments may appoint other representatives) and will meet twice a year (with the same possibility of extraordinary sessions as the Assembly and under the same conditions). The Executive Council is to coordinate and take decisions on common policies (again according to the same rules of voting as the Assembly). Compare id., Arts. 10-13, with OAU Charter Arts. XII-XIV.

67 It is charged with preparing the work of the council and carrying out its instructions. The option is open for this committee to establish working groups or subcommittees to assist in preparing or carrying out its functions. CA, supra note 1, Art. 21.

68 Id., Art. 14.

69 These are the Economic and Social Commission; the Educational, Scientific, Cultural and Health Commission; and the Defense Commission. OAU Charter Art. XX.

70 The seven committees expressly established are the Committee on Rural Economy and Agricultural Matters; the Committee on Monetary and Financial Affairs; the Committee on Trade, Customs and Immigration Matters; the Committee on Industry, Science and Technology, Energy, Natural Resources and Environment; the Committee on Transport, Communications and Tourism; the Committee on Health, Labour and Social Affairs; and the Committee on Education, Culture and Human Resources.

71 As provided for in OAU Charter Art. XIX.

72 AEC Treaty, supra note 3, Art. 87.

73 At the thirty-seventh OAU summit in July 2001, the secretary-general noted the absence of some institutions that existed within the OAU but were not incorporated in the Union, in particular the Mechanism for Conflict Prevention, Management and Resolution. He recommended that the Assembly adopt a decision to incorporate this mechanism and other organs. OAU 37th Summit, supra note 55.

74 AEC Treaty, supra note 3, Art. 84.

75 Id., Art. 82.

76 OAU, News, Diary 1 [no title] (July 2, 2001), at<http://www.oau-oua.org/Lusaka>.

77 OAU, News, Diary 2, More Member States Pay Up (July 7, 2001), at id.

78 These experts are to help design the necessary protocols to make the various organs that have been created operational. Experts and ministerial committees will subsequently have to be convened to examine these proposals and recommendations, and present them to the Executive Council.

79 Only a few years ago, the current Rwandan leadership was part of the Ugandan leadership: President Kagame was a highly placed Ugandan army official. When he came into power in Rwanda, Kagame’s relationship with Uganda was strong. Today, however, the relationship has greatly deteriorated.

80 Russell, Alec, Men, Big, Little People: Encounters in Africa 283(1999)Google Scholar.

81 Danso, supra note 38, at 32-35, notes that one of the most glaring reflections of Africa’s weakness is the low volume of trade between its countries. Most goods from the region are exported to the Western industrialized countries and Africa imports even more goods from the West than it sells to it.

82 Id at 51.

83 Secretary-General Amara Essy was sworn in on July 11,2001, and assumed his new functions in September 2001. OAU, Election of Secretary-General (July 10, 2001), at <http://www.oau-oua.org/Lusaka/Election.htm>.