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Introduction to the Norms and Institutions of the African Union

By Girmachew Alemu Aneme

Girmachew Alemu Aneme (Ph.D.) is an Assistant Professor, School of Law, Addis Ababa University. He is the author of A Study of the African Union’s Right of Intervention against Genocide, Crimes against Humanity and War Crimes (forthcoming 2011).

 

Published November/December 2010

 

Table of Contents

1. Background: The transformation of the OAU into the AU
   1.1 The OAU

   1.2 The Sirte Declaration and the establishment of the African Union

2. Membership of the African Union
3. The Objectives and Principles of the African Union

              3.1 Regional Integration

              3.2 Peace and Security

              3.3 Protection of Human Rights

              3.4 Non-Intervention

              3.5 Intervention

              3.6 Respect for Democracy and Rule of Law

4. The Institutions of the African Union

              4.1 The Assembly

              4.2 The Executive Council

              4.3 The Specialized Technical Committees

              4.4 The Permanent Representatives Committee

              4.5 The Peace and Security Council

4.5.1. Establishment

4.5.2 Composition

4.5.3 Supporting Institutions

              4.6 The Pan-African Parliament

              4.7 The Court of Justice

              4.8 The Commission

              4.9 The Economic, Social and Cultural Council

              4.10 The Financial Institutions

              4.11 The African Commission on Human and Peoples’ Rights

5. The relation between the AU and sub-regional organizations

6. The status of the AU under the UN Charter
7. The Status of the AU Treaties
8. Key Documents
9. Useful Links

 

1. Background: The transformation of the OAU into the AU

1.1 The OAU

The Organisation of African Unity (OAU), the predecessor of the African Union, was established by the then independent states of Africa on 25 May 1963 in Addis Ababa, Ethiopia.[[1]]  The OAU Charter served as a roadmap for the efforts and actions of the independent African States to liberate the Continent from colonialism and apartheid. By the end of the 1970s, much of Africa was liberated from colonialism with the exception of the racist regimes in South Africa and Zimbabwe. This new reality in Africa led to the call for the review of the OAU Charter as early as 1979. The sixteenth ordinary session of the Assembly of Heads of State and Government of the OAU held in Monrovia, Liberia, in July 1979 established the OAU Charter Review Committee (the Committee) in a bid ‘to re-examine the provisions of the Charter in light of the changes and realities in Africa’. [[2]] The Committee was meant to make a detailed study of the OAU Charter in light of the current needs of the Continent and come up with specific proposals for new norms and institutions that would have been instrumental in responding to the atrocities like the Rwandan genocide.

The Committee attempted to forward a proposal for new rules and institutions that would make the Charter more effective. [[3]] Nevertheless, the activities of the Committee were very slow and highly marginalised because of the absence of active involvement of member States. New developments on the Continent and worldwide, such as the total liberation of African States from colonialism, the end of apartheid in South Africa, the challenges of massive human rights violations inside independent African States and intra-state and inter-state conflicts and the end of the cold war made the transformation of the OAU a necessity.

1.2 The Sirte Declaration and the establishment of the African Union

By July 1999, when the OAU Thirty-fifth Assembly of Heads of State and Government met in Algiers, it was clear that the OAU Charter Review Committee had failed to achieve its purpose. The OAU Assembly of Heads of State and Government accepted a call for an extraordinary meeting on the issue of the transformation of the OAU [[4]]  and decided to hold its 4th extraordinary meeting ‘to discuss ways and means of making the OAU effective so as to keep pace with political and economic developments taking place in the world and the preparation required of Africa within the context of globalization so as to preserve its socio-economic and political potentials’.[[5]] Accordingly, the fourth extraordinary session of the OAU Assembly of Heads of State and Government met in Sirte, Libya on 8-9 September 1999 and adopted the Sirte Declaration, which inter alia called for the establishment of the African Union:

Article 8 ‘Having discussed frankly and extensively on how to proceed with the strengthening of the unity of our continent and its peoples, in the light of those proposals, and bearing in mind the current situation on the Continent, we decide to: (i) Establish an African Union, in conformity with the ultimate objectives of the Charter of our Continental Organization and the provisions of the Treaty establishing the African Economic Community.’ [[6]]

The Sirte Declaration did not specify the details of the new organisation. Rather the Declaration instructed the Council of Ministers and the Secretary-General of the OAU to work on the details of the establishment of the new organisation (African Union) and report their work to the next ordinary session of the OAU Assembly of Heads of State and Government.[[7]] Accordingly, the OAU Secretary-General established a Departmental Task Force under the Chairmanship of the OAU Assistant-Secretary General for Political Affairs to design the steps that should be taken by the OAU Secretariat to implement the Sirte Declaration.[[8]] The Departmental Task force recommended involvement of expert consultants to develop the preparatory documents for the Constitutive Act of the African Union in collaboration with the OAU Secretariat.[[9]]

In February 2000, a group of consultants with backgrounds in law, economics and politics met in Addis Ababa and came up with a draft Constitutive Act of the African Union.[[10]] After consultation by the OAU Secretariat with member states, the draft Constitutive Act together with earlier draft proposals from member states were presented to two consecutive meetings of Experts and Parliamentarians on the establishment of the African Union that were held on 17-20 April 2000 in Addis Ababa, Ethiopia and 27-29 May 2000 in Tripoli, Libya respectively.[[11]] The meetings of Experts and Parliamentarians reviewed the draft Constitutive Act and presented their assessment to a Ministerial Conference on the Establishment of the African Union on 31 May - 2 June 2000 in Tripoli, Libya. The Ministerial Conference reviewed the draft Constitutive Act and decided to establish a working group to further elaborate on the draft Constitutive Act.[[12]] The working group submitted the revised draft Constitutive Act to the Seventy-second ordinary session of the OAU Council of Ministers on 6-8 July 2000 in Lome, Togo.[[13]]

After further deliberations, the OAU Council of Ministers approved the draft Constitutive Act and recommended its submission to the Assembly of Heads of State and Government for adoption.[[14]] The thirty-sixth ordinary session of the OAU Assembly of the Heads of State and Government held in Lome, Togo on 10-12 July 2000 adopted the Constitutive Act of the African Union and urged member states of the OAU to ratify the Constitutive Act as soon as possible.[[15]] The fifth extraordinary meeting of the OAU Assembly of Heads of State and Government declared the political birth of the African Union and noted that the Constitutive Act of the African Union (AU) would enter in to force 30 days after the deposit of the instruments of ratification by two-thirds of the member States of the OAU, as provided for in Article 28 of the Constitutive Act.[[16]]  The Constitutive Act entered into force on 26 May 2001 up on ratification by two thirds of member States of the OAU replacing the OAU Charter.[[17]] The African Union Assembly of Heads of State and Government held its inaugural session in Durban, South Africa, on 9 July 2002.[[18]]

2. Membership of the African Union

There are only two requirements for membership in the African Union (AU). First, a State should be an African State to be a member of the AU. [[19]] Second, an African State should sign and ratify the AU Constitutive Act. [[20]] All African States except Morocco have ratified the AU Constitutive Act and are therefore members of the AU. [[21]]

 An African State (Morocco, as the only non-member), can accede to the AU Constitutive Act and become a member of the AU if and when the AU member States support the application for accession and admission by a simple majority.[[22]] There are no criteria set in the Constitutive Act as standards for the vote on the request for accession. Moreover, all AU member States have the same rights and obligations. The Constitutive Act does not provide for a veto power or any kind of special status for any member State of the AU.

Withdrawal of membership is allowed after a member State notifies in writing its intention to renounce its membership of the Union to the Chairperson of the AU Commission, who will communicate such notification to the other State parties of the Constitutive Act.[[23]] The applicant should wait one year from the date of notification of its intention to renounce membership before its rights and obligations under the Constitutive Act are terminated.[[24]] The rights and obligations of the member State remain intact during the one year window period.[[25]After a window period of one year, the applicant is deemed to have withdrawn its membership if it does not rescind its decision to renounce its membership. Article 12 of the Protocol on Amendments to the Constitutive Act provides for the repeal of the right to renounce membership. [[26]] The explanatory notes accompanying the proposal for the removal of the right recognizes that renunciation of membership is the right of member States but nevertheless argues for the deletion of the right as it has a negative connotation on the unity of the region.[[27]]  

3. The Objectives and Principles of the African Union

Articles 3 and 4 of the Constitutive Act of the AU enumerate the objectives and principles of the regional organization. The objectives and principles can be summarized into the following six interrelated areas. The first three sub-sections focus on the objectives while the rest three focus on explaining the principles that are meant to be used to achieve the objectives.

3.1 Regional Integration

The AU is planned to be a forum for the promotion of regional integration and African unity through socio-economic integration, continental research on all fields including science and technology and the development of common positions on issues of common interest. [[28]] The AU also establishes institutions that nurture solidarity among African peoples, coordinate its actions with sub-regional economic communities and forges a common front in international negotiations and cooperation. [[29]]

3.2 Peace and Security

The AU member States recognize that ‘the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent’.[[30]] Thus, one important objective area of the AU is the establishment of collective security system in a bid to promote peace and security as a prerequisite for development on the continent.[[31]] The focus on peace and security can also be gathered from the new norms and institutions of collective security that member States established.[[32]] AU member States pledge to strengthen and provide necessary mandate and resources to all relevant institutions including institutions for the maintenance of collective security.[[33]]

3.3 Protection of Human Rights

The protection of human rights is provided as one major objective for the establishment of the AU. One reason given by member States for establishing the AU is their determination ‘to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law.’[[34]] Thus, the AU member States set the observance of the Universal Declaration of Human Rights, and the African Charter on Human and Peoples’ Rights as one objective of the organization. [[35]] Moreover, the promotion of ‘democratic principles and institutions, popular participation and good governance’ is provided as an objective of the organization within the promotion and protection of the rights of African people. [[36]]

3.4 Non-Intervention

The AU Constitutive Act rules out unilateral intervention between member States. Unilateral intervention among member States is pointed out as a common security threat on the Continent. [[37]] Apart from the direct principle of ‘non-interference by any Member State in the internal affairs of another’, [[38]] the non-intervention norm is expressed through many principles of the organisation. For instance, the Constitutive Act rejects subversive activities in member States.[[39]] Subversion is defined as constituting ‘any act that incites, aggravates or creates dissension within or among Member States with the intention or purpose to destabilize or overthrow the existing regime or political order by, among other means, fomenting racial, religious, linguistic, ethnic and other differences’ in violation of the Constitutive Act and the Charter of the United Nations.[[40]] Thus, subversion does not only include the use or threat of military force, which is prohibited under the Constitutive Act,[[41]] but also the non-military means of interference.[[42]] The Protocol on Amendments to the Constitutive Act of the AU proposes two additional principles on subversion that request ‘restraint by any Member State from entering into any treaty or alliance that is incompatible with the principles and objectives of the Union’ and prohibit ‘any Member State from allowing the use of its territory as a base for subversion against another Member State.’[[43]]

The AU non-intervention principle is based on the principles of sovereign equality and interdependence among member States and respect of borders existing on achievement of independence. [[44]] The principles of ‘peaceful co-existence of Member States and their right to live in peace and security’ and the peaceful resolution of conflicts among member States are also the basis of the non-intervention norm among member States of the AU. [[45]]

3.5 Intervention

Intervention in member States under the AU constitutes unprecedented principle under international law. The AU is endowed with the right to intervene ‘in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’.[[46]] The Protocol on Amendments to the Constitutive Act of the African Union adds ‘a serious threat to legitimate order to restore peace and stability to the Member State of the Union’ as an additional element that would trigger intervention by the AU in a member State on top of crimes, genocide and crimes against humanity.[[47]]

AU member States have also agreed on the right to ‘request intervention from the Union in order to restore peace and security’. [[48]] This is a case of intervention by invitation. The request for intervention from a member State is made to the Assembly of the AU, which is the highest decision-making organ. [[49]]

3.6 Respect for Democracy and Rule of Law

AU member States have acknowledged the relation between democracy, rule of law and economic development. The principles of respect for democracy, rule of law, and good governance are adopted as precondition for social justice that ensures economic development in member States of the AU.[[50]] The New Partnership for Africa’s Development (a.k.a NEPAD) is one framework launched by African States that links the respect for civil and political rights with the right to development in member States of the AU.[[51]] AU member States adopted the principle of ‘condemnation and rejection of unconstitutional changes of governments’.[[52]] The rejection of impunity is also a principle adopted by the AU member States that strengthen their commitment to the rule of law.[[53]]

4. The Institutions of the African Union

Article 5 of the AU Constitutive Act provides for the establishment of the following institutions of the Union: the Assembly, the Executive Council, the Specialized Technical Committees, the Pan-African Parliament, the Court of Justice, the Financial Institutions, the Commission, the Permanent Representatives Committee, and the Economic, Social and Cultural Council. [[54]] Another key institution, which was not directly established by the Constitutive Act, is the AU Peace and Security Council. A brief exposition based on the Constitutive Act and respective protocols of the institution follows.

4.1 The Assembly

The AU Assembly is the supreme decision-making organ of the Union.[[55]] It is composed of the Heads of State and Government of all member States of the African Union or their accredited representatives.[[56]] The Assembly meets at least once in a year in an ordinary session and convenes for an extra ordinary meeting at the request of a member State and at the approval of two-third majority of member States.[[57]] In its 2004 summit the AU Assembly decided to meet twice a year in ordinary session citing its increasing responsibilities in the face of the many challenges of the Continent.[[58]] All the sessions of the Assembly are to be held at the AU headquarters in Addis Ababa, Ethiopia.[[59]] However, the Assembly can hold its session elsewhere if a member State extends invitation to host the session. The inviting State should not be under sanction from the AU and should be able to meet pre-determined criteria such as paying up all financial obligations to the Union and maintaining favorable political atmosphere.[[60]] The Assembly should hold at least one session at the headquarters of the Union every other year based on its calendar.[[61]] As a matter of rule all sessions of the Assembly are closed.[[62]] However, the Assembly may decide to hold open sessions with a vote of simple majority.[[63]] The decisions of the Assembly are made either by consensus or by a two-thirds majority of the member States of the Union.[[64]]

The Assembly is lead by a Chairperson elected among the heads of State or government for a period of one year.[[65]] The Chairperson of the Assembly is generally elected after consultations among member States and based on the principle of rotation.[[66]] However, as an exception to the rule, the head of state or government of a host country which has invited the Assembly for its proceedings is given the automatic right to be the Chairperson of the Assembly.[[67]] The Chairperson of the Assembly is assisted by the Bureau for each summit composed of fourteen Vice-Chairpersons elected based on geographical distribution and due consultations.[[68]] The Chairperson is responsible, inter alia, to convene the sessions of the Assembly, guide the proceedings of the Assembly, rule on point of order and in consultation with the Chairperson of the Commission represents the Union in between sessions.[[69]]

As the supreme organ of the Union, the Assembly determines the policies of all organs of the Union.[[70]] It monitors the implementation of policies and decisions by its organs and takes decisions on reports and recommendations from its organs such as a recommendation for intervention in member States from the Peace and Security Council.[[71]] In particular the Assembly directs the Executive Council, the Peace and Security Council and the Commission on management of conflicts, acts of terrorism and emergency situations.[[72]] The Assembly is mandated to impose sanctions on member States for violation of the principles enshrined in the Constitutive Act.[[73]] Moreover, the Assembly adopts the budget of the Union and appoints and removes the judges to both the African Human Rights Court and the Court of Justice of the Union.[[74]]

The structure, functions and regulations of the AU Commission,[[75]] the administrative wing of the organization, is determined by the Assembly.[[76]] The Assembly appoints the Chairperson of the Commission and his/her deputies as well as all other Commissioners of the Union and determines their functions and terms of office.[[77]] The Assembly is also given power of interpretation of the Constitutive Act until the establishment of the AU Court of Justice.[[78]] The Assembly has the right to delegate its powers and functions to any organ of the AU.[[79]]

4.2 The Executive Council

The Executive Council is another decision-making organ composed of the ministers of foreign affairs or equivalent authorities designated by the governments of the member States of the AU.[[80]] The Executive Council is directly accountable to the Assembly.[[81]]  The details of most decisions and policies of the Assembly of the Union are worked out by the Council before they are presented to the Assembly for final decision.[[82]]  The Executive Council has the power to make its own binding decisions on common interest of member States such as foreign trade, energy, transport and communication, education, culture, health, and immigration.[[83]]  The Executive Council can also make binding decisions in other areas based on the delegation given to it from the Assembly.[[84]] The Executive Council meets at least twice a year in ordinary sessions while extraordinary meetings can be held when a member state requires and two-thirds of the member States support the request.[[85]] In practice, the Executive Council holds its meetings immediately before every session of the AU Assembly. The meeting of the Executive Council is chaired by the Minister of Foreign Affairs or equivalent authority whose country holds the Chair of the Assembly or in case of extraordinary session the Minister of Foreign Affairs of the host member State.[[86]] As a rule all sessions of the Executive Council are closed unless the Council decides by simple majority to hold open meeting.[[87]] The Executive Council makes its decisions by consensus or, failing which, by a two-thirds majority of the member States.[[88]] The Executive Council is assisted by the Permanent Representative Committee[[89]] and the seven Specialized Technical Committees of the AU.

4.3 The Specialized Technical Committees

The Specialized Technical Committees are various committees responsible for, inter alia, the preparation and coordination of the projects and programs of the Union and supervision and follow-up of the policies of the Union or any function assigned by the Executive Council.[[90]] The Specialized Committees are accountable to the Executive Council.[[91]] The Committees are composed of ministers or senior officials of member States responsible for rural economy and agriculture; monetary and financial affairs; trade, customs and immigration matters; industry, science and technology, energy, natural resources and environment; transport, communications and tourism; Health, Labor and Social Affairs; and Education, Culture and Human Resources.[[92]] The Assembly has the mandate to add other relevant committees or reorganize the existing Specialized Committees as it deems fit.[[93]] The Specialized Technical Committees meet as often as required by their tasks or as directed by the Executive Council.[[94]]

4.4 The Permanent Representatives Committee

The Permanent Representative Committee (PRC) is a body composed of permanent representatives of member States to the AU resident at the Headquarters of the Union in Addis Ababa or other duly accredited plenipotentiaries of member States.[[95]] The PRC is accountable to the Executive Council.[[96]] The PRC serves as an advisory body to Executive Council.[[97]] The PRC prepares the bulk of the work of the Executive Council, carrying out most of the practical activities for the Executive Council including the preparation and recommendation of agendas for the sessions of the Executive Council and drafting proposals for decisions of the Executive Council.[[98]] The PRC monitors the implementation of the budget of the Union and the decisions of the Executive Council.[[99]] The Executive Council can assign more functions to the PRC.[[100]] The PRC can establish ad-hoc committees and working groups to carry out its tasks.[[101]] The PRC is also the organ that facilitates the communication between the Commission of the AU and member States.[[102]] The PRC holds its sessions at the headquarters of the AU at least once in a month chaired by the Permanent Representative whose country holds the chair of the Executive Council.[[103]] All the sessions of the PRC are closed unless the PRC decides by simple majority to hold open meeting.[[104]]

4.5 The Peace and Security Council

4.5.1. Establishment

The AU Constitutive Act does not establish the Peace and Security Council as one the organs of the AU.[[105]] In the initial process of establishing the AU, the Central Organ of the 1993 OAU Mechanism for Conflict Prevention, Management and Resolution was incorporated and retained as a peace and security organ of the AU based on Article 5(2) of the Constitutive Act.[[106]] Following the incorporation of the Central Organ, the OAU Assembly requested the OAU Secretary-General to undertake a review of the structures, procedures and working methods of the Central Organ of the 1993 OAU Mechanism, including the possibility of changing its name.[[107]]  The OAU Secretary-General presented his report and the draft protocol for the establishment of a new Peace and Security Council to the OAU Council of Ministers in July 2002 during the transition from OAU to the AU. [[108]] The draft protocol was presented to the first ordinary session of the Assembly of African Union held in Durban, South Africa. The Protocol relating to the establishment of the Peace and Security Council was adopted by the first ordinary session of the AU Assembly and entered into force on 26 December 2003.[[109]]

The Peace and Security Council is a permanent decision-making organ of the AU for the prevention, management and resolution of conflicts in Africa established on the basis of Article 5(2) of the Constitutive Act of the AU.[[110]] The Peace and Security Council is situated at the Headquarters of the African Union.[[111]]

 4.5.2 Composition

The member States of the Peace and Security Council are fifteen in number, elected by the AU Assembly based on the principles of equitable regional representation and rotation, with three members from the centre, three members from the east, two members from the north, three members from the south and four members from the west of Africa.[[112]] There is no provision for permanent and non-permanent members of the Peace and Security Council.[[113]] However, the Peace and Security Council Protocol has provided detailed criteria for membership of States to the Council. The Peace and Security Council Protocol requires that prospective member States to the Peace and Security Council should exhibit, inter alia, respect for constitutional governance, the rule of law, the protection of human rights and the commitment to honor financial obligations of the Union.[[114]] Any AU member State that meets the criteria may apply for membership to the Peace and Security Council.[[115]] Initial election on the candidacy is preferably done by each sub-region of Africa which would later submit the candidates to the AU Assembly, the organ which makes the final selection.[[116]] The first members of the Peace and Security Council were elected by the Executive Council as delegated by the Assembly.[[117]]

The Peace and Security Council Protocol also provides that the Assembly shall conduct a periodic review to assess the extent to which elected members of the Council continue to meet the membership criteria and ‘take action as appropriate’.[[118]] The phrase ‘take action as appropriate’ refers to the possibility of dismissal of a member State from the Peace and Security Council when it fails to fulfill the criteria of membership specified under Article 5(2) of the Peace and Security Council Protocol.

4.5.3 Supporting Institutions

In implementing its mandate, the Peace and Security Council works with the various AU  organs including the Assembly, Pan-African Parliament and the African Commission on Human and Peoples’ Rights.[[119]] The following organs are designated as supporting institutions of the Peace and Security Council: the AU Commission, the Peace Fund, the Continental Early Warning System, the Panel of the Wise, the African Standby Force and the Military Staff Committee.[[120]] A brief overview of each supporting institution follows.

(A) The AU Commission

The Peace and Security directorate is the main organ of the AU Commission responsible for providing operational support to the Peace and Security Council.[[121]] The Peace and Security directorate of the AU Commission provides the Council with a permanent Secretariat to run its day to day activities.[[122]] Moreover, the Peace and Security directorate of the AU Commission establishes and operationalise all the supporting institutions of the Peace and Security Council namely the Continental Early Warning System, the African Standby Force and the Peace Fund and the Panel of the Wise.[[123]] Moreover, the Chairperson of the AU Commission has the responsibility to monitor the implementation of decisions adopted by the Peace and Security Council upon the approval of the Assembly.[[124]]

(B) The Peace Fund

The Peace and Security Council Protocol provides for the establishment of a Special Fund, known as the Peace Fund, in order to finance the activities of the AU aimed at maintaining peace and security in the Continent.[[125]] The primary source of the Peace Fund is the regular budget to the African Union, known as the General Peace Fund.[[126]] The other major category of the Peace Fund is what is called the Special Contribution.[[127]] Under the Special Contribution, the sources of the Peace fund are voluntary contributions from AU member States, voluntary contributions from the private sector and civil society as well as individuals in AU member States and donations from non-member States.[[128]] Donations and voluntary contributions from sources outside of Africa are accepted in so far as they are ‘in conformity with the objectives and principles of the Union’. [[129]]

            (C) The Continental Early Warning System

The Continental Early Warning System (CEWS) is a supporting institution designed to carry out the prevention and early warning mandate of the Peace and Security Council.[[130]]  It consists of two important bodies: the main observation and monitoring center under the Peace and Security directorate located at the headquarters of the AU (called ‘The Situation Room’) and a communication panel with the observation and monitoring rooms in each of the sub-regional organizations.[[131]] The Situation Room collects and analyses information from ‘the public domain in hard and soft prints, including newspapers both private and public, satellite TV channels, electronic news sites, and from informal sources on the ground.’[[132]] The information is then processed and compiled in the form of ‘News Briefs’, and is forwarded to the relevant organs of the AU three times a day and should be posted and circulated through the intranet for all staff of the organization.[[133]]

The Situation Room is planed to be linked to similar information centers of the sub-regional organizations in the continent.[[134]]  The Situation Room also benefits from its collaboration with the United Nations agencies and other international organizations, academic institutions and NGOs.[[135]]  The observation and monitoring is based on an early warning module which contains political, economic, social, military and humanitarian indicators.[[136]] After series of consultations and meetings of experts, an operational framework for the CEWS has been approved by the AU Executive Council in the beginning of 2007.[[137]]

                                    (D) The Panel of the Wise

The Panel of the Wise is an advisory body composed of five highly respected African personalities who have made outstanding contribution to the cause of peace and security on the Continent. Members of the Panel are appointed by the Assembly for a term of three years. The Panel of the Wise advises the Peace and Security Council and the AU Commission on conflict prevention and promotion of stability in Africa.

 (E) The African Standby Force

A key enforcement and supporting institution under the Peace and Security Council is the African Standby Force. The Peace and Security Protocol provides for the establishment of the African Standby Force composed of civilian and military personnel for the purpose of implementing the peacekeeping and intervention mandate of the AU. [[138]]

(F) The Military Staff Committee

The Military Staff Committee (MSC) is a standing advisory body to the Peace and Security Council on military and related security matters. [[139]] The MSC is composed of Senior Military Officers of members of the Peace and Security Council.[[140]] However, the MSC can also meet at the level of Chiefs of Defence Staff of members of the Peace and Security Council.[[141]] The MSC members meet as often as required, and at least once in a month.[[142]] Even though the MSC is directly accountable to the Peace and Security Council, it can also consult with other relevant organs of the AU.[[143]] The meetings of the MSC follow the Rules of Procedure provided under the Policy Framework for the establishment of the ASF and MSC[[144]] and where applicable the rules of procedure of the Peace and Security Council. [[145]]                      

4.6 The Pan-African Parliament

The AU Constitutive Act provides for the establishment of a Pan-African Parliament (PAP) whose functions, composition and powers are provided under a separate protocol.[[146]] The Protocol for the establishment of the PAP provides that the PAP is composed Parliamentarians elected from the Parliament or equivalent legislative organs of each member state.[[147]] Each member State of the AU has five Parliamentarians in the PAP selected from both ruling and opposition parties participating in the national parliaments of member States and at least one of whom must be a woman.[[148]] The tenure of the Parliamentarians in the PAP runs concurrently with their tenure at their national parliament.[[149]] However, the parliamentarians act and vote independently of their national parliament once they are sworn in the PAP.[[150]] In its daily activities the PAP is run by a Bureau composed of a  president and four vice-presidents elected from all sub-regions based on equitable geographical representation and supported by a Clerk and deputy Clerks .[[151]]

 The idea behind the establishment of the PAP is the representation of the African people and their grass-root organizations in the deliberations and decisions of the policy organs of the AU.[[152]] The PAP is given the mandate to ‘exercise advisory and consultative powers only’ to the Assembly and to all policy organs of the Union either at the request of the AU organs or at its own initiative.[[153]] In order to carry out its mandate, the PAP is given, inter alia, the power to discuss and make recommendations and pass resolutions on issues of importance and relevance to the continent such as the promotion of peace and security and protection of human rights and democracy.[[154]] The PAP is also given the mandate to issue invitations to the representatives of policy organs of the Union and member States ‘to furnish explanations in plenary on issues affecting or likely to affect the life of the African Union’.[[155]] The members of the PAP are entitled to forward their questions to any policy organ of the AU through the President of the PAP while the President of the PAP can in consultation with the Bureau, invite the Chairperson of the Assembly to explain a decision taken by the Assembly to the PAP.[[156]] The AU Commission is obliged to submit annual report on the activities of the Union to the PAP.[[157]] The PAP meets at least twice a year on ordinary sessions while a request for extraordinary session by two-thirds of the PAP members, the Assembly or the Executive Council of the Union can be made any time.[[158]] All sessions of the PAP are open for the public unless there is the PAP Bureau decides otherwise.[[159]] The President of the PAP attends AU Assembly sessions and presents the reports of the PAP to the Assembly.[[160]] The PAP is operational and sits in South Africa.[[161]]  The PAP budget, including the allowances for its members, is part of the overall AU budget.[[162]]

4.7 The Court of Justice

The Constitutive Act provides for the establishment of the Court of Justice of the Union whose statute, composition and functions are defined in a separate protocol.[[163]] The Protocol of the Court of Justice of the AU identifies, inter alia, the eligible parties to submit cases, the jurisdiction of the Court, and sources of law of the Court.[[164]]

The AU Court of Justice is the ‘principal judicial organ of the Union’ and is given both advisory and contentious jurisdiction.[[165]] Under its contentious jurisdiction, the Court is given competence, inter alia, over all disputes that pertain to the interpretation and application of the AU Constitutive Act, the interpretation and application or validity of all treaties and legal instruments adopted and ratified under the auspices of the AU,  over ‘all acts, decisions, regulations and directives of the organs of the Union’ and any treaties between member states of the Union that provides for the jurisdiction of the court.[[166]]  The AU Assembly may also confer a special jurisdiction over the Court in addition to its statutory jurisdiction.[[167]] The Court of Justice has got power to make binding decisions on member States and can review the acts of the Union within its contentious jurisdiction.[[168]]

The formal sources of law of the Court are the AU Constitutive Act, international treaties expressly recognized by contesting states, international custom, and general principles of law; while judicial decisions, the writings of publicists, the AU regulations, directives and decisions are subsidiary means for the determination of the rule of law. [[169]] [The parties eligible to submit cases to the Court are AU member states that have signed and ratified the Protocol establishing the Court, the AU Assembly, the AU Pan-African Parliament, the AU Commission  and ‘other organs of the Union authorized by the Assembly.’[[170]] Moreover, staff members of the AU Commission are given the right to submit cases to the AU Court of Justice in a dispute amongst themselves within the limits and conditions of the Staff Rules and Regulations.[[171]] Third parties can also submit cases based on the direction of the Assembly and the concerned state party. [[172]]

 In July 2004, the AU Assembly of Heads of State and Government decided that the Court of Justice ‘should be integrated into one Court’ with the African Court on Human and Peoples’ Rights citing financial and logistical constraints to establish two different courts. [[173]] The African Court on Human and Peoples’ Rights is a judicial body as part of the African Human Rights system. The Protocol for the establishment for the African Court on Human and Peoples’ Rights entered into force on 25 January 2004 while the Protocol on the establishment of the Court of Justice of the AU has not entered into force as of this date. The AU Assembly has decided that the operationalization of the African Court on Human and Peoples’ Rights should continue pending its future merger with the Court of Justice.[[174]] Accordingly the AU Assembly has elected 11 judges for the African Court on Human and Peoples’ Rights and decided the Court should be located in Arusha, Tanzania.[[175]]

4.8 The Commission

The AU Commission is a permanent organ established by the AU Constitutive Act.[[176]] The Commission is the administrative wing of the AU accountable to the Assembly and the Executive Council.[[177]] The AU Commission is given numerous administrative functions and mandate that include administrating the AU institutions; coordinating and monitoring the implementation of the decisions of the policy organs of the AU such as  Assembly , the Executive Council , the Peace and Security Council of the Union in collaboration with the organs; providing operational support to the Peace and Security Council; initiating proposals on the budget and wide range of regional issues; organizing and managing meetings and accepting donations and grants that are compatible with the objectives and principles of the Union; and depositing the treaties adopted and ratified under the aegis of the African Union.[[178]]

The AU Commission is composed of the Chairperson, the deputy Chairperson and eight Commissioners all of whom are appointed by the Assembly based on gender balance and equitable representation of all sub-regions. [[179]] Once appointed, all officials of the AU Commission are only responsible to the AU and not to any government and external authority.[[180]] The officials are assisted by all necessary staff in running the Commission located at the AU headquarters in Addis Ababa, Ethiopia.

The Chairperson of the Commission is the Chief Executive Officer and legal representative of the AU and is mandated to carry out many essential functions such as the overall responsibility of the finances and administration of the Commission, the preparation of its budget, participating in the meetings of the Assembly, the Executive Council, the Peace and Security Council and keep records of the deliberations, follow up and report on the implementation of the decisions of the policy organs of the AU, appoint staff of the Commission and carry out any function that is assigned to him by the Assembly and the Executive Council.[[181]] The Chairperson is accountable to the Executive Council.[[182]] The Deputy Chairperson is accountable to the Chairperson and is responsible for the day-to-day administration of the Organization.[[183]]

The eight Commissioners are accountable to the Chairperson of the Commission and each Commissioner heads one of the eight departments/directorates of the Commission established along the eight portfolios of the Commission.[[184]] The portfolios of the Commission are Political Affairs; Peace and Security; Infrastructure and Energy; Social Affairs; Human Resources, Science and Technology; Trade and Industry; Rural Economy and Agriculture; and Economic Affairs.[[185]] The Third ordinary session of the Executive Council of the AU maintained the portfolios as departments of the Commission.[[186]] The Executive Council further added a number of directorates and units under the office of the Chairperson and the Deputy Chairperson. Thus, under the Office of the Chairperson we find the Bureau of the Chairperson, the Directorate for Women, Gender and Development; the Directorate for Strategic Policy Planning, Monitoring and Evaluation, International Cooperation and Resource Mobilization; the Communication and Information Unit; and Protocol Services Unit; the NEPAD Coordination Unit; the Secretariat of the CSSDCA; the Office of the Legal Counsel; and the Office of the Internal Auditor.[[187]] The Directorate for Administration and Human Resources Development; the Directorate for Programming, Budgeting, Finance and Accounting; and the Directorate for Conference Services were put under the Office of the Deputy Chairperson. [[188]]

4.9 The Economic, Social and Cultural Council

The AU Economic, Social and Cultural Council (ECOSOCC) is an advisory body composed of representatives of civil society, professional groups and cultural groups both in Africa and in the Diaspora.[[189]] The main idea behind the establishment of the ECOSOCC is the broad participation of the ordinary African citizens through representative civil society organizations and professional groups in the activities of the Union.[[190]] Thus, the main objectives of the ECOSOCC include the participation of the African Civil Society in the promulgation and implementation of the policies and norms of the AU and the development of communication between the ordinary citizens of Africa on common issues of the continent.[[191]] Based on its objectives,  the ECOSOCC is given the task of popularization of the AU norms among the citizens of Africa and giving advisory services to the organs of the Union how best to implement the norms and policies of the Organization at its own initiative or at the request of organs of the Union.[[192]]  The structures of the ECOSOCC include General Assembly as the highest decision making organ with 150 members of the civil society elected at the level of member states, sub-regions, the continent, the African diaspora and ex-officio members appointed by the commission; the Standing Committee to coordinate the works of the ECOSOCC appointed by its General Assembly; Sectoral Cluster Committees to advise on specific areas; and Credentials Committee.[[193]]

The AU ECOSOCC was launched on March 27-30, 2005 in Addis Ababa, Ethiopia at the headquarters of the AU.[[194]]  During the launching conference, the Interim General Assembly of the ECOSOCC sworn in Wangari Maathai, Nobel Laureate from Kenya, as the President of the Bureau of the Interim General Assembly of ECOSOCC with four deputies from the center, north, south and west sub-regions.[[195]] The Interim Bureau has established a Standing Committee which held its first meeting in Nairobi, Kenya from April 22-24, 2005 for consultation on the establishment of the required organs of the ECOSOCC.[[196]] The Standing Committee and the Interim General Assembly are in the process of establishing all the post-interim Assembly and all organs of the ECOSOCC.[[197]]

4.10 The Financial Institutions

The Constitutive Act of the AU envisages the establishment of the African Central Bank, the African Monetary Fund and the African Investment Bank as the three new financial institutions under the Union.[[198]] The rules and regulations for the establishment of the financial institutions are yet to be provided in separate protocols. The fourth ordinary session of the AU Assembly has requested the Chairperson of the Commission to prepare the legal instruments for the establishment of the three financial institutions. [[199]] The same Assembly session has also decided that the African Central Bank should be located in the Western sub-region while the African Investment Bank and African Monetary Fund should be located in the Northern and Central sub-regions respectively. [[200]] Accordingly Nigeria was selected as the host country for the future African Central Bank while Libya and Cameroon were chosen to host the African Investment Bank and African Monetary Fund respectively.[[201]] The process of establishing the financial institutions has continued into 2007. [[202]]

4.11 The African Commission on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights forms part of the African regional system of human rights, which has its basis on the African Charter on Human and Peoples’ Rights. [[203]] The African Charter on Human and Peoples’ Rights established the African Commission on Human and Peoples’ Rights as an organ of implementation of its substantive provisions.[[204]] The AU Constitutive Act does not recognize the African Commission on Human and Peoples’ Rights as one of the organs of the AU. However, the African Commission on Human and Peoples’ Rights was incorporated as an organ of the AU in 2002. [[205]]

The African Commission on Human and Peoples’ Rights is composed of eleven members elected by the AU Executive Committee from member States and appointed by the AU Assembly. [[206]] The members of the Commission serve in their personal capacity. [[207]] The Commission is run by a Secretariat in its daily activities. [[208]] The budget of the African Commission on Human and Peoples’ Rights is provided by the AU as part of the overall budget of the AU Commission. [[209]]

The African Commission on Human and Peoples’ Rights is given three mandates: promotional, protective and interpretative.[[210]] Under the promotional mandate, the Commission works for the awareness of human rights in Africa through different methods such as publication, research on human rights problems in Africa and collaboration with African and other international institutions concerned with the protection of human and peoples’ rights.[[211]] The protective mandate of the Commission generally provides that the Commission shall ‘ensure the protection of human and peoples’ rights under conditions laid down by the present Charter.’ [[212]] Under the protective mandate, the African Commission on Human and Peoples’ Rights examine State reports, inter-state communications, and in limited cases, individual complaints of human rights violations. [[213]]

The African Commission on Human and Peoples’ Rights is given the general power to ‘resort to any appropriate method of investigation’ thereby giving it some latitude to adopt investigation methods within the bounds of its protective mandate. [[214]] Consequently, the African Commission on Human and Peoples’ Rights has developed other important protective functions over the years. The use of fact-finding missions in member States and the appointment of Special Rapporteur on thematic issues of human rights on the continent are the two main protective functions undertaken by the African Commission on Human and Peoples’ Rights. [[215]] All the above-mentioned protective measures of the African Commission on Human and Peoples’ Rights result in reports and recommendations which are communicated to the concerned State parties and to the Assembly of the AU. [[216]] The AU Assembly may request the Commission to make further in-depth investigation if it believes that the report of the Commission indicates serious human rights violations.[[217]] Any measure that may be taken by the Commission within its protective mandate remains confidential until the AU Assembly decides otherwise.[[218]]

5. The relation between the AU and sub-regional organizations

Currently there are over ten sub-regional organizations in Africa.  The African Union recognizes eight sub-regional organizations: Economic Community of West African States (ECOWAS), Common Market of East and Southern Africa (COMESA), Economic Community of Central African States (ECCAS), Southern African Development Community (SADC), Inter-Governmental Authority for Development (IGAD), Arab Maghreb Union (AMU), Economic Community of Sahelo-Saharian States (CEN-SAD) and East African Community (EAC).[[219]]

African sub-regional organizations were initially established as economic communities in their respective sub-region. There is no clear framework to coordinate the economic objectives of the AU with the sub-regional organizations.

Moreover, the major sub-regional organizations have developed norms and institutions on security. In this regard, the Peace and Security Council Protocol provides that the sub-regional organizations are part and parcel of the continental security architecture.[[220]] The African Common Defense and Security Policy reaffirms that sub-regional organizations are the implementing institutions of the AU norms on the prevention, management and resolution of conflict under the umbrella of the Peace and Security Council.[[221]] Nevertheless, the relationship and hierarchy between the AU and the sub-regional organizations on the issue of the maintenance of peace and security is not yet clearly worked out. In 2005, the AU Commission has launched consultative meetings with the above-mentioned sub-regional organizations in order to work on the details of the Memorandum of Understanding between the AU Peace and Security Council and the sub-regional organizations security mechanisms. [[222]]

6. The status of the AU under the UN Charter

The UN Charter provides the following characteristics of regional organisations under Article 52(1):

Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangement or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

The words ‘agencies’ or ‘arrangements’ under Article 52(1) of the UN Charter refer to the kind of regional organisation that member States may establish. [[223]] Thus, ‘arrangements’ are organisations based on multilateral treaties among States while ‘agencies’ refer to regional organisations with various kinds of organs of implementation of the multilateral treaties.[[224]]  The criteria for determining whether an organisation is a regional organisation under Article 52 (1) of the UN Charter are two:[ [225]]

1) The organisation should play a role in the maintenance of international peace and security as is appropriate for regional action.

2) The objectives of organisation and its activities should be compatible with the purposes and principles of the United Nations.

When seen against the above criteria, the AU can be characterised as a regional organisation under Article 52(1) of the UN Charter as it is meant to play a role in the maintenance of peace and security in Africa[[226]] and observe the purposes and principles of the UN.[[227]] Moreover, the Protocol for the establishment of the AU Peace and Security Council as well as the various statements of the AU organs indicate that the AU considers itself as a regional organization within the meaning of Article 52(1) of the UN Charter. [[228]]  For instance, in its 10th ordinary session, the AU Assembly  called upon the UN ‘to examine, within the context of Chapter VIII of the United Nations Charter, the possibility of funding, through assessed contributions, peacekeeping operations undertaken by African Union or under its authority and with the consent of the United Nations.’ [[229]] In its various communications, the UN Security Council has also recognised the AU as a regional organisation within the parameter of the principles laid down in Articles 52 and 53 of the UN Charter. [[230]]

7. The Status of the AU Treaties

The transformation of the Organization of African Unity (OAU) into the new continental organization of the AU in 2001 makes it necessary to discuss the current status of the treaties that were signed and ratified under the aegis of the OAU. Currently there are 40 treaties under the auspices of the African Union. [[231]] About half of these treaties were adopted under the auspices of OAU, the predecessor of the AU. The treaties adopted under the OAU are assumed by the AU and continue to be binding on those States, which have signed and ratified them. The AU Executive Council and the AU Commission are working on the revision of some of the treaties that were signed and ratified under the aegis of the OAU. [[232]]

 

8. Key Documents

-Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001).

-Protocol on Amendments to the Constitutive Act of the African Union (adopted on 3 February 2003 and 11 July 2003).

-Protocol relating to the establishment of the Peace and Security Council of the African Union (adopted 9 July 2002, entered into force 26 December 2003).

-Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights (adopted 9 June 1998, entered into force 25 January 2005).

-Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (adopted 2 March 2001, entered into force 14 December 2003)

-Protocol of the Court of Justice of the African Union (adopted 11 July 2003) Assembly/AU/Dec.25 (II).

-African Union (Assembly of Heads of State and Government) ‘Solemn Declaration on a Common African Defense and Security Policy’ (Sirte 2004). 

-Organization of African Unity (Assembly of Heads of State and Government) ‘Sirte Declaration’ (Sirte 1999) EAHG/Draft/Decl. (IV) Rev.1.

-African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986).

-African Union Non-Aggression and Common Defence Pact (adopted 31 January 2005) Assembly/AU/Dec.71 (IV).

-African Union (Assembly of Heads of State and Government) ‘Statutes of the Commission of the African Union’ (Durban 2002) ASS/AU/2(I).

-African Union (Assembly of Heads of State and Government) ‘Statutes of the Economic, Social and Cultural Council of the African Union’ (Addis Ababa 2004) AU/Dec.48 (III).

-African Union (Assembly of Heads of State and Government) ‘Rules of Procedure of the Assembly’ (Durban, 2002) ASS/AU/Dec.2 (I).

-African Union (Assembly of Heads of State and Government) ‘Rules of Procedure of the Executive Council’ (Durban, 2002).

-African Union (Assembly of Heads of State and Government) ‘Rules of Procedure of the Permanent Representative Committee’ (Durban, 2002) Ass/AU/Dec.2 (I).

-African Union (Executive Council) ‘Decision on the Operationalization of the Peace and Security Council’ (Addis Ababa, 2004) EX/CL/Dec. 79(IV).

-African Union (Pan-African Parliament) ‘Rules of Procedure’ (Midrand, 2004).

-Rules of Procedure of the African Commission on Human and Peoples’ Rights (adopted on 6 October 1995).

-International Panel of Eminent Personalities to investigate the 1994 Genocide in Rwanda and the Surrounding Events, Rwanda: ‘The Preventable Genocide’ (Report) (2000).

-African Standby Force Peace Support Operations Doctrine, Final Draft (2006) Peace Support Operations Division, Peace and Security Directorate, African Union.

- Roadmap for the operationalisation of the African Standby Force’ (Addis Ababa, March 2005) Exp/AU-RECs/ASF/4(I).

-African Union (Peace and Security Council) ‘Policy Framework for the Establishment of the African Standby Force and the Military Staff Committee’ (Addis Ababa, 2003) Exp/ASF-MSC/2(I) Part I.

-African Union ( Assembly of Heads of State and Government) ‘Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union’ ( Sirte 2005)  Assembly/AU.DEc.83 (V).

 

9. Useful links

The African Union

United States Mission to the African Union

Institute for Security Studies  

Centre for Human Rights, University of Pretoria



[[1]] Charter of the Organization of African Unity (adopted 25 May 1963, entered into force 13 September 1963).

[[2]] Organization of African Unity (Assembly of Heads of State and Government) ‘Decision on the Review of the Charter’ (Monrovia 1979) AHG/Dec.111 (XVI) Rev.1.

[[3]] See Organization of African Unity (Charter Review Committee) ‘Rapporteur’s Report’ (Addis Ababa 1989) CAB/LEG/23.6/200 where the Committee proposed sanction against member states who violate the norms of the organization ; Organization of African Unity ( Charter Review Committee) ‘Report of the Secretary-General on the Review of the OAU Charter’ ( Addis Ababa 1996) CAB/LEG/23.6/58/VOL.IV where proposals for the establishment of an African Defense Force, an African Commission of Jurists, Regional Parliament and an African Court of Justice were made.

[[4]] It was Libya, which made the call for extra-ordinary session of the OAU. This is done in accordance with Article 5 of the Rules of Procedure of the OAU Assembly of Heads of State and Government that provides that ‘At the request of any Member State and on approval by a two-thirds majority of the Member States, the Assembly Shall meet in extraordinary session.’

[[5]] Organization of African Unity (Assembly of Heads of State and Government) ‘Decision on the Convening of  an Extraordinary Session of the OAU Assembly of Heads of State and Government in accordance with Article 33(5) of  its Rules of Procedure’ (Algiers 1999)  AHG/Dec. 140(XXXV). The reference to Article 33(5) of the Rules of Procedure must be an error meant to refer to Article 5.

[[6]] Organisation of African Unity (Assembly of Heads of State and Government) ‘Sirte Declaration’ (Sirte 1999) EAHG/Draft/Decl. (IV) Rev.1.

[[7]] ibid art 8(iii) and (iv).

[[8]] See Organization of African Unity (Council of Ministers) ‘Progress Report of the Secretary-General on the Implementation of the Sirte Declaration’ (Addis Ababa 2000) CM/2146(LXXI).

[[9]] Organization of African Unity, Inter-Departmental Task Force on the Implementation of the Sirte Declaration, CAB/LEG/23.15.

[[10]] Organization of African Unity, Implementation of Sirte Declaration of 9.9.99: Report and Recommendations of Consultants CAB/LEG/23.15/3/Vol.IV.

[[11]] Organization of African Unity (Legal Experts and Parliamentarians on the establishment of the African Union and the Pan-African Parliament) ‘Report’ (Addis Ababa 2000) CAB/LEG/23.15/6/VOL/ IV. 

[[12]] Organization of African Unity (Ministerial Conference on the Establishment of the African Union and the Pan-African Parliament) ‘Report, (Tripoli 2000) Sirte/Min/Rpt (I). The Ministerial conference was dissatisfied with the draft Constitutive Act presented and lamented that the draft did not capture the spirit of the Sirte Declaration for the establishment of a Confederation of African States.

[[13]] See Organization of African Unity (Council of Ministers) ‘Report of the Seventy-Second Ordinary Session of the Council of Ministers’ (Lome 2000) CM/Rpt (LXXII).

[[14]] Organization of African Unity (Council of Ministers) ‘Decision on the Draft Treaty establishing the African Union and the Draft Protocol to the Treaty establishing the African Economic Community relating to the Pan-African Parliament’ (Togo 2000)  CM/Dec.519(LXXII) Rev.1.

[[15]] Organization of African Unity (Assembly of Heads of State and Government) ‘Decision on the establishment of the African Union and the Pan-African Parliament’ (Togo 2000) (AHG/Dec.143 (XXXVI).

[[16]] Organization of African Unity (Assembly of Heads of State and Government) ‘Decision on the African Union’ (Sirte 2001) EAHG/Dec.1 (V).

[[17]] Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001).

[[18]] Assembly of the African Union, First Ordinary Session, 9-10 July 2002, Durban, South Africa.

[[19]] Constitutive Act (n 17) art 29(1).

[[20]] Constitutive Act (n 17) art 27(1).

[[21]] Morocco is the only African State, which is not a member of the AU. Morocco withdrew in 1984 from the OAU, the predecessor of the AU, protesting the admission of Western Sahara.

[[22]] Constitutive Act (n 17) art 29 (1) and (2).

[[23]] Constitutive Act (n 17) art 31 (1).

[[24]] Ibid.

[[25]] Constitutive Act (n 17) art 31 (2).

[[26]] See Protocol on Amendments to the Constitutive Act of the African Union (adopted on 3 February 2003 and 11 July 2003).

[[27]] African Union ‘Explanatory Notes on the Libyan Proposals for Amendment of the Constitutive Act of the African Union’, Proposed Amendments to Articles of the Constitutive Act of the African Union, (proposed by the Great Socialist Peoples’ Libyan Arab Jamahiriya), AHG/238(XXXVIII) provide that ‘It is quite obvious that a Member State can always withdraw from an international organization even where the treaty is silent on withdrawal or denunciation. This is the case with the United Nations Charter where some countries have withdrawn notwithstanding that it is not mentioned textually. Libya’s proposal is that this right should not be mentioned in the Act, as if states are being invited to withdraw or denounce the Act’. In the text of the same document of the proposed amendment under Article 31, Libya went further than its explanatory notes and stated that Article 31 should be deleted because ‘a state whose policy-making bodies have ratified the Constitutive Act has no grounds to withdraw from the Union, renounce its membership and request that the Act should cease to apply to it.’

[[28]] Constitutive Act ( n 17) preamble paragraph 1 provides that member States are ‘inspired by the noble ideals which guided the founding fathers of our Continental Organisation [OAU] and generations of Pan-Africanists in their determination to promote unity, solidarity, cohesion and cooperation among the peoples of Africa and African States’.

[[29]] ibid preamble paragraph 7, art 3, (a)-(d), (i)-(m).

[[30]] Constitutive Act (n 17) preamble paragraph 8.

[[31]] Ibid.

[[32]] See section 4.5 on the Peace and Security Council.

[[33]] Constitutive Act (n 17) preamble paragraph 10.

[[34]] ibid preamble paragraph 9.

[[35]] ibid art 3 (e) and (h).

[[36]] ibid art 3 (g).

[[37]] African Union (Assembly of Heads of State and Government) ‘Solemn Declaration on a Common African Defense and Security Policy’ ( Sirte  2004) art 8(i) ( c): ‘Lack of respect for the principle of non-interference by one Member State in the internal affairs of another’.

[[38]] Constitutive Act (n 17) art 4(g).

[[39]] ibid art 4 (o).

[[40]] African Union Non-Aggression and Common Defence Pact (adopted 31 January 2005) Assembly/AU/Dec.71 (IV) art 1(a).

[[41]] Constitutive Act (n 17) art 4 (f).

[[42]] See also Common African Defence and Security Policy (n 37) art 12 (iv) ‘African countries shall, subject to the generally accepted norms of free speech, not engage in, or allow non-state entities to engage in any actions, that incite or intend to incite individuals or groups in the territory of other African countries to violence, which actions amount to propaganda for war or advocate hatred based on race, ethnicity, gender or religion’.

[[43]] Protocol on Amendments to the Constitutive Act (adopted 11 July 2003) Assembly/AU/Dec.26 (II) art 4 (q) (r); For analysis on the amendment see Tiyanjana Maluwa, ‘Fast-Tracking African Unity or Making Haste Slowly? A Note on the Amendments to the Constitutive Act of the African Union’ (2004) 51(2) NILR 195, 220-223.

[[44]] Constitutive Act (n 17) art 4 (a) and (b).

[[45]] ibid art 4 (e) and (i).

[[46]] ibid art 4(h).

[[47]] Protocol on Amendment (n 43) art 4 (h).

[[48]] Constitutive Act (n 17) art 4(j).

[[49]] Protocol relating to the establishment of the Peace and Security Council of the African Union (adopted 09 July 2002, entered into force 26 December 2003) art 7 (1) (f) available at www.africa-union.org/root/au/Documents/Treaties/treaties.htm    accessed 22 May 2004.

[[50]] Constitutive Act (n 1) art 4 (m), (n).

[[51]] For details on NEPAD see Peter Anyang Nyong’o et. al. (eds.), New Partnership for Africa’s Development (NEPAD): A New Path? (English Press Ltd, Nairobi 2002).

[[52]] Constitutive Act (n 17) art 4 (p).

[[53]] Constitutive Act (n 17) art 4 (l), (o).

[[54]] Constitutive Act (n 17) art 5(1).

[[55]] Constitutive Act (n 17) art 6 (2).

[[56]] Constitutive Act (n 17) art 6 (2); African Union (Assembly of Heads of State and Government) ‘Rules of Procedure of the Assembly’ (Durban 2002) Ass/AU/Dec.2 (I) Rule 3. An Amendment was made to the Rules of Procedure of the Assembly in 2007 (Assembly/AU/Dec.146 (VIII)). However, the amendment does not affect the explanations provided here. For details on the amendments, see African Union (Executive Council) ‘Report of the PRC and Legal Experts on Various Legal Matters’ (Sirte 2005) EX.CL/195 (VII).

[[57]] Constitutive Act (n 17) art 6 (3); See Assembly Rules of Procedure (n 56) Rules 5-14 on the details of meetings of the Assembly.

[[58]] African Union (Assembly of Heads of State and Government) ‘Decisions on the Periodicity of the ordinary sessions of the Assembly’ (July 2004, Addis Ababa) Assembly /AU/Dec.53 (III).

[[59]] Assembly Rules of Procedure (n 56) Rule 5(1).

[[60]] ibid Rule 5(3).

[[61]] ibid Rule 5(1).

[[62]] ibid Rule 13.

[[63]] Ibid.

[[64]] Constitutive Act (n 17) art 7.

[[65]] Constitutive Act (n 17) art 6(4); Assembly Rules of Procedure (n 56) Rule 15.

[[66]] Constitutive Act (n 17) art 6(4); Assembly Rules of Procedure (n 56)   Rule 15 (1).

[[67]] Assembly Rules of Procedure ( n 56) Rule 15(2): ‘Where the Assembly accepts an invitation from a Member State in conformity with the criteria laid down in Rule 5 of these Rules, the Head of State or Government of the host country shall have the right to preside over the Assembly.’

[[68]] Assembly Rules of Procedure (n 56) Rule 15(1).

[[69]] ibid Rule 16, 1-4.

[[70]] Constitutive Act (n 17) art 9(a).

[[71]] ibid art 9(b), (e).

[[72]] Assembly Rules of Procedure (n 56) Rule 4(d).

[[73]] ibid Rule 4 (g).

[[74]] Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights ( adopted 9 June 1998, entered into force 25 January 2005)   arts 14 and 19; Constitutive Act ( n 17) art 9(h) .

[[75]] See section 4.8 for details on the AU Commission.

[[76]] Assembly Rules of Procedure (n 56) Rule4 (t).

[[77]] Constitutive Act (n 17) art 9(i). 

[[78]] ibid art 26.

[[79]] ibid art 9(2).

[[80]] ibid art 10(1).

[[81]] Constitutive Act ( n 17) art 13(2) ; African Union ( Assembly of Heads of State and Government)  ‘Rules of Procedure of the Executive Council’ (Durban 2002)  Rule 2 . Rules of Procedure of the Executive Council in 2007 (Assembly/AU/Dec.146 (VIII)). However, the amendment does not affect the explanations provided here. For details on the amendments, see African Union (Executive Council) ‘Report of the PRC and Legal Experts on Various Legal Matters’ (Sirte 2005) EX.CL/195 (VII).

[[82]] Executive Council Rules of Procedure (n 81) Rule 5.

[[83]] Constitutive Act (n 17) art 13(1) (a –l).

[[84]] ibid art 9.

[[85]] Constitutive Act ( n 17) art 10;  See Executive Council Rules of Procedure  ( n 81) Rules 7-14 for details on the meetings.

[[86]] Executive Council Rules of Procedure (n 81) Rule 16 1 and 2.

[[87]] ibid Rule 14.

[[88]] Constitutive Act (n 17) art 11.

[[89]] See section 4.4 on the Permanent Representative Committee.

[[90]] Constitutive Act (n 17) arts 13(3), 15.

[[91]] Constitutive Act (n 17) art 14(1).

[[92]] ibid art 14 (1) (a)-(g).

[[93]] ibid art 14(2). 

[[94]] ibid art 16.

[[95]] Constitutive Act ( n 17) art 21; African Union ( Assembly of Heads of State and Government)  ‘Rules of Procedure of the Permanent Representative Committee’ ( Durban 2002) Ass/AU/Dec.2(I)   Rule 3(2). An Amendment was made to the Rules of Procedure of the Permanent Representative Committee in 2007 (Assembly/AU/Dec.146 (VIII)). However, the amendment does not affect the explanations provided here. For details on the amendments, see African Union (Executive Council) ‘Report of the PRC and Legal Experts on Various Legal Matters’ (Sirte 2005) EX.CL/195 (VII).

[[96]] PRC Rules of Procedure (n 95) Rules 2, 4(1) (a).

[[97]] ibid Rule 4(1).

[[98]] Constitutive Act (n 17) art 21(2); PRC Rules of Procedure (n 95) Rule 4 (c), (d).

[[99]] PRC Rules of Procedure (n 95) Rule 4(i), (l).

[[100]] ibid Rule 4, 1(p).

[[101]] ibid Rule 4(2).

[[102]] ibid Rule 4(e).

[[103]] ibid Rules 5 and 11.

[[104]] ibid Rule 9.

[[105]] See Constitutive Act (n 17) art 5.

[[106]] Organization of African Unity (Assembly of Heads of State and Government) ‘Decision on the implementation of the Sirte Summit on the African Union’ (Lusaka 2001) AHG/Dec. 1 (XXXVII) art 8 (a) and (b).

[[107]] ibid art. 8 (a) and (c).

[[108]] Organization of African Unity (Council of Ministers) ‘Decision on the establishment of the Peace and Security Council within the African Union’ (Durban 2002) CM/Dec.678.

[[109]] African Union (Assembly of Heads of State and Government) ‘Decision on the establishment of the Peace and Security Council of the African Union’ (Durban 2002) Ass/AU/Dec.3(I);  Protocol relating to the establishment of the Peace and Security Council of the African Union (adopted 09 July 2002, entered into force 26 December 2003). 

[[110]] Peace and Security Council Protocol (n 109) art 2(1); Constitutive Act (n 17) art 5(2) provides that the Assembly of the AU may decide to establish additional organs not provided for in the Constitutive Act.

[[111]] Peace and Security Council Protocol (n 109) art 8(1).

[[112]] Peace and Security Council Protocol (n 109) art 5(1) (a) ten members elected for a term of two years; and (b) five members elected for a term of three years in order to ensure continuity; see also African Union ( Executive Council) ‘ Modalities for the Election of Members of the Peace and Security Council’ ( March 2004) art 4 .

[[113]] Musifiky Mwanasali, ‘Emerging Security Architecture in Africa’ (2004) 17(4) Policy: Issues and Actors 14, provided that the composition of the Peace and Security Council was a matter of debate in the deliberations of the AU policy organs where ‘initially, the idea was to institute the equivalent in Africa of UN Security Council’s permanent members (i.e. the so-called African ‘hegemons’) and non-permanent rotating members’ which was later rejected.

[[114]] Peace and Security Council Protocol (n 109) art 5 (2) a-j.

[[115]] Modalities for the Election of Members of the Peace and Security Council (n 112) art 7.

[[116]] ibid arts 10 and 11.

[[117]] African Union (Executive Council) ‘Decision on Election of Members of the Peace and Security Council’ (Addis Ababa 2004) EX/CL/Dec.81/ (IV). The current members are Equatorial Guinea, Kenya, Libya, Zimbabwe, Nigeria, Burundi,  Chad, Djibouti, Rwanda, Mauritania, Namibia, South Africa, Cote d’ Ivoire and Mali.

[[118]] Peace and Security Council Protocol ( n 109) art 5(4)

[[119]] ibid arts 16-20.

[[120]] Peace and Security Council Protocol (n 109) art 2(2); According to art 8(5) of the Protocol , the Peace and Security Council is also given the power to establish subsidiary organs to implement its mandate.

[[121]] African Union (Assembly of Heads of State and Government) ‘Statutes of the Commission of the African Union’ (Durban 2002) ASS/AU/2(I)-d, art 3 (2) (s); See section 4.8 for more details on the AU Commission. See also African Union ( Executive Council)  ‘Report of the 3rd Ordinary Session of the Executive Council on the proposed Structure, Human Resource Requirements and Conditions of Service for the Staff of the Commission of the African Union and their Financial Implications’ ( 8 July 2003) as approved by African Union( Assembly of Heads of  State and Government) ‘Decision on the Implementation of the Durban Decision on the Interim Period’( Maputo 2003) AU/Dec.22(II), Part III, B, Department for Peace and Security .

[[122]] Peace and Security Council Protocol (n 109) art 10(4).

[[123]] Executive Council Report on AU Structure (n 121).

[[124]] Peace and Security Council Protocol ( n 109) art 10(3) b; See also Peace and Security Council  Rules of Procedure ,  Rule  26(3) b.

[[125]] Peace and Security Council Protocol (n 109) art 21(1). All operations directed by the Peace and Security Council are envisaged to be supported by the Peace Fund (see art 21(5) cum art 13(3) of the Peace and Security Council Protocol). The Peace Fund was originally established under the 1993 OAU Conflict Prevention, Management and Resolution Mechanism.

[[126]] African Union (Advisory Sub-Committee on Administrative, Budgetary and Financial Matters) ‘Report of the Chairperson of the Commission on the Status of the AU Peace Fund as at 31 December 2004’ (Addis Ababa 2005) Adv.S/Cttee.8 (VIII).

[[127]] Ibid.

[[128]] Peace and Security Council Protocol (n 109) art 21(2).

[[129]] ibid art 21(3).

[[130]] Peace and Security Council Protocol (n 109) art 12 and 7(1) (a).

[[131]] Peace and Security Council Protocol (n 109) art 12(2) a-b.

[[132]] African Union ‘Workshop on the establishment of the AU Continental Early Warning System (CEWS) (30-31 October 2003) (Report) (Addis Ababa, Ethiopia) 23.

[[133]] Ibid.

[[134]] Peace and Security Protocol ( n 109) art 12(2) (b); See also African Union ( Meeting of Governmental Experts on Early warning and Conflict Prevention) ‘ Meeting the Challenge of Conflict Prevention in Africa-Towards the Operationalisation of the Continental Early Warning System’ ( Kempton Park 2006) PSD/EW/EXP/2(I), paragraphs 9-18.

[[135]] Peace and Security Council Protocol (n 109) art 12(3).

[[136]] ibid art 12(4).

[[137]] African Union (Executive Council) ‘Decision on the Outcome of the meeting of Governmental Experts on Early Warning and Conflict Prevention’ ( Addis Ababa 2007)  EX.CL/Dec.336 (x). In its decision, the Executive Council urged the Commission to immediately start operation of the CEWS.

[[138]] Ibid, arts 13 and 15(3). For details on the African Standby Force, see Girmachew Alemu Aneme, ‘The African Standby Force: Major issues under Mission Scenario Six’ in Political Perspectives, 2008 Vol.2 (1), University of Manchester at http://papers.ssrn.com

[[139]] Peace and Security Council Protocol (n 109) art 13(8) and (11). Apart from advising the Peace and Security Council on all military and related security matters, the MSC can also make recommendations to the Chairperson of the Commission on the enhancement of peace support capacities of the AU; See also African Union (Peace and Security Council) ‘Policy Framework for The Establishment of the African Standby Force and The Military Staff Committee’ (Addis Ababa 2003) Exp/ASF-MSC/2(I) Part I (ASF Policy) 34-35 on other functions of the MSC.

[[140]] Peace and Security Council Protocol (n 109) art 13 (9).

[[141]] Peace and Security Council Protocol (n 109) art 13(11).

[[142]] Peace and Security Council Protocol (n 109) art 13 (10); See also ASF Policy (n 139).

[[143]] ASF Policy (n 139) Chapter 4, paragraph 4.9(c) and paragraph 4.14.

[[144]] See ASF Policy (n 139).

[[145]] See Conclusions of the Third Meeting of the Military Staff Committee held on 25 April 2005, at Addis Ababa, Ethiopia, 3rd meeting of the Military Staff Committee of the Peace and Security Council Addis Ababa, Ethiopia, 25 April 2005, paragraph 3.

[[146]] Constitutive Act (n 17) art 17(1), (2).

[[147]] Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (adopted 2 March 2001, entered into force 14 December 2003) art. 4(1) (2).

[[148]] ibid article 4 (2), (3).

[[149]] African Union (Pan-African Parliament) ‘Rules of Procedure’ (Midland 2004) Rule 7(2).

[[150]] ibid art. 7 (4); PAP Protocol (n 147) art 6.

[[151]] PAP Protocol (n 147) art 12 (2), (5).

[[152]] ibid preamble paragraph 4 and art. 2(2).

[[153]] PAP Protocol (n 147) art 2(3) (i): ‘The ultimate aim of the Pan-African Parliament shall be to evolve into an institution with full legislative powers, whose members are elected by universal adult suffrage. However, until such time as the Member States decide otherwise by an amendment to this Protocol: i) The Pan-African Parliament shall have consultative and advisory powers only’;   See also art 11 of the same Protocol which provides that ‘The Pan-African Parliament shall be vested with legislative powers to be defined by the Assembly. However, during the first term of its existence, the Pan-African Parliament shall exercise advisory and consultative powers only.’

[[154]] PAP Protocol ( n 147) art 3(5) and art 11 (1) ; See also PAP Rules of Procedure ( n 105) Rule 5-‘Powers of Parliament’-(d) make recommendations and take resolutions on any matters relating to the African Union and its organs, Regional Economic Communities and their respective organs and institutions.’

[[155]] PAP Rules of Procedure (n 149) Rule 5(e).

[[156]] ibid Rule 67 (1-4), Rule 74(1-2).

[[157]] African Union (Assembly of Heads of State and Government) ‘Statutes of the Commission of the African Union’ (Durban 2002) ASS/AU/2(I)-d art 3 (2) (u). An Amendment was made to the Statutes of the Commission in 2007 (Assembly/AU/Dec.146 (VIII)). However, the amendment does not affect the explanations provided here. For details on the amendments, see African Union (Executive Council) ‘Report of the PRC and Legal Experts on Various Legal Matters’ (Sirte 2005) EX.CL/195 (VII).

[[158]] PAP Protocol (n 147) art 14 (1-3). 

[[159]] ibid art 13(4).

[[160]] PAP Rules of Procedure (n 149) Rule 76.

[[161]] ibid Rule 2.

[[162]] PAP Protocol (n 147) art. 10, art 15(1-2).

[[163]] Constitutive Act (n 17) art 18(1).

[[164]] Protocol of the Court of Justice of the African Union (adopted 11 July 2003) Assembly/AU/Dec.25 (II).

[[165]] ibid arts 2(2), 19(1) and 44.

[[166]] ibid art 19 (1) a-g; See also Constitutive Act (n 17) art 26; PAP Protocol (n 147) art 20.

[[167]] Protocol of the Court of Justice (n 164) art 19(2).

[[168]] ibid arts 37, 38, 51.

[[169]] ibid art 20.

[[170]] ibid art 18 (a), (b), (c). 

[[171]] ibid art 18 1 (C).

[[172]] ibid art 18 1(d).

[[173]] African Union (Assembly of Heads of State and Government) ‘Decision on the Seats of the African Union’ (Addis Ababa 2004) AU/Dec.45 (III) art 4; African Union (Assembly of Heads of State and Government) ‘Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union’ (Sirte 2005) Assembly/AU.DEc.83 (V).

[[174]] ibid.

[[175]] African Union (Assembly of Heads of State and Government) ‘Decision on the Election of Judges of the African Court on Human and Peoples’ Rights’ (Khartoum 2006) Assembly/AU/Dec.100 (VI); See also African Union (Assembly of Heads of State and Government) ‘Decision on the Activity Report of the African Court on Human and Peoples’ Rights for 2006’ (Addis Ababa 2007) Assembly/AU/Dec.144 (VIII).

[[176]] Constitutive Act (n 17) art 20.

[[177]] AU Commission Statutes (n 121) art 3-2(a).

[[178]] ibid art. 3 provides the list of functions.

[[179]] ibid art 2(1) and art 6; Constitutive Act (n 17) art 9(1) (i).

[[180]] ibid art 4(1).

[[181]] AU Commission Statutes (n 121) AU art 8. The Chairperson has many more functions not listed on the AU Commission Statutes. See for instance Constitutive Act (n 17) arts 20, 27(3), 29, 31(1), 33(5).

[[182]] ibid art 7(2).

[[183]] See AU Commission Statutes (n 121) art 9 on the other responsibilities of the Deputy Chairperson.

[[184]] ibid art 11.

[[185]] ibid art 12.

[[186]] African Union ( Executive Council)  ‘Report of the 3rd Ordinary Session of the Executive Council on the proposed Structure, Human Resource Requirements and Conditions of Service for the Staff of the Commission of the African Union and their Financial Implications’ ( 8 July 2003) as approved by African Union( Assembly of Heads of  State and Government) ‘Decision on the Implementation of the Durban Decision on the Interim Period’( Maputo 2003) AU/Dec.22(II) .

[[187]] ibid.

[[188]] ibid.

[[189]] Constitutive Act (n 17) art 22(1).

[[190]] The effort to bring in popular participation in regional organizations was already started in the 1990s when the African Charter on Popular Participation and Development was adopted in Arusha, Tanzania on February 12-16 1990 under the auspices of the Economic Commission for Africa; See also Constitutive Act (n 1) art 4 (c) which states ‘participation of the African peoples in the activities of the Union’ as one of the guiding principles of the Union.

[[191]] African Union (Assembly of Heads of State and Government) ‘Statutes of the Economic, Social and Cultural Council of the African Union’ (Addis Ababa 2004) AU/Dec.48 (III) arts 2 & art 3(2) which enumerates members of the ECOSOCCC.

[[192]] ibid art 7.

[[193]] ibid arts 8-12.

[[194]] See the Draft Rules of Procedure of the Economic, Social and Cultural Council of the African Union, Revised February, 2005, on election of its members and how the council conducts its business.

[[195]] African Union, Press Release No. 13 /2005, ‘Wangari Maathai, Sworn in as President of Interim Bureau of ECOSOCC’.

[[196]] See 1st meeting of the Interim ECOSOCC Standing Committee, 22-24 April 2005, Nairobi, Kenya

[[197]] African Union (Executive Council) ‘Decision on the Report of the Interim Economic Social and Cultural Council (ECOSOCC)’ (Addis Ababa 2007) EX.CL/Dec.338(X).

[[198]] Constitutive Act (n 1) art 19. The African Development Bank was established under the auspices of the UN Economic Community for Africa in August 1963.

[[199]] African Union (Assembly of Heads of State and Government) ‘Decision on the Location of the Headquarters of AU institutions in various AU Regions of the Continent’ (Abuja 2005) Assembly/AU/Dec.64 (IV) art 3. The Same session noted that the Northern Region has agreed that Libya should host the Investment Bank; See also African Union ( Executive Council)  ‘Decision on the Interim Report on the establishment of Financial Institutions’ ( Khartoum 2006) EX.CL/Dec.242 (VIII) where the Executive Council has requested the two other sub-regions to identify the host state for the sub-regions. The Executive Council also requested the Commission to set up Technical Steering Committees for the establishment of the institutions.

[[200]] ibid

[[201]] African Union (Executive Council) ‘Report of the Chairperson of the Commission for the Period July to December 2006’ (Addis Ababa 2007) EX.CL/319(X) 99.

[[202]] Ibid.

[[203]] African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986).

[[204]] ibid art 30 ‘An African Commission on Human and Peoples’ Rights, hereinafter called ‘the Commission’ , Shall be established within the Organization of African Unity to promote human and peoples’ rights and ensure their protection in Africa.’

[[205]] African Union (Assembly of Heads of State and Government) ‘Decision on the Interim Period’ (Durban 2002) ASS/AU/Dec. 1(I) paragraph xi.

[[206]] African Charter on Human and Peoples’ Rights  (n 203)  art 31(1): Members need to be chosen from ‘amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience.’

[[207]] ibid art 31 (2).

[[208]] Rules of Procedure of the African Commission on Human and Peoples’ Rights (adopted on 6 October 1995) Rules 22 and 23.

[[209]] African Charter on Human and Peoples’ Rights   (n 203) art 41; African Commission on Human and Peoples’ Rights Rules of Procedure (n 208) Rules 25 and 26.

[[210]] African Charter on Human and Peoples’ Rights   (n 203) art 45 (1-3). Article 45(3) of the Charter provides that the African Human Rights Commission can interpret the provisions of the African Charter on Human and Peoples’ Rights at the request of a state party, the AU, or any African Organization recognized by the AU. Article 45 (4) provides that the African Human Rights Commission shall ‘perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government’ in addition to the specified mandates.

[[211]] ibid art 45(1) (a-c).

[[212]] ibid art 45(2).

[[213]] ibid arts 47 and 55 respectively.

[[214]] ibid art 46.

[[215]] See Vincent O. Orlu Nmehielle, The African Human Rights System: Its Laws, Practice, and Institutions, (Martinus Nijhoff Publishers, The Hague 2001) 180 who provided that the appointment of Special Rapporteur on specific human rights issues has also developed as one aspect of the protective mandate of the African Human Rights Commission.

[[216]] African Charter on Human and Peoples’ Rights   (n 203) art 52; African Commission on Human and Peoples’ Rights Rules of Procedure (n 208) Rule 120.

[[217]] African Charter on Human and Peoples’ Rights   (n 203) art 58.

[[218]] ibid art 59(1).

[[219]] African Union (Assembly of Heads of State and Government) ‘Decision on the Moratorium on the Recognition of Regional Economic Communities (RECs)’ (Banjul 2006) Assembly/AU/Dec.112 (VII).

[[220]] Peace and Security Council Protocol (n 109) art 16(1).

[[221]] African Union (Assembly of Heads of State and Government) ‘Solemn Declaration on a Common African Defense and Security Policy’ (Sirte 2004)   arts 26 and 27.

[[222]] PSC/AHG/3(IX) , 4; Peace and Security Council Protocol ( n 109)  art 16(9) provides that the details of the relation between the Peace and Security Council and the sub-regional organizations shall be worked out in a Memorandum of Understanding. After due consultation, the African Union called experts’ meeting, which drafted a Memorandum of Understanding  on the relationship between the Peace and Security Council of the African Union and the sub-regional organizations. See Exp/AU-RECS/ASF/I (5).

[[223]] There are no clear criteria used to define what are ‘regional arrangements or agencies’ for the purpose of the UN Charter. See for instance Report of the Secretary-General, ‘An Agenda for Peace: Preventive diplomacy, peacemaking and peace-keeping’ (1992) UN Doc A/47/277-S/24111 paragraph 61: ‘The Charter deliberately provides no precise definition of regional arrangements and agencies, thus allowing useful flexibility for undertakings by a group of States to deal with a matter appropriate for regional action which also could contribute to the maintenance of international peace and security.’

[[224]] Passau Michael Schweitzer and Innsbruck Waldemar Hummer, ‘Article 52’ in Bruno Simma and others (eds), The Charter of the United Nations: A Commentary (2nd edn Volume I, Oxford University Press, Oxford 2002) 823 add: ‘Even if the distinction between the concepts of arrangements and agencies can be drawn in theory, it has little practical significance: the requirements for their admissibility and the object of their activities as well as resulting legal consequences are identical.’

[[225]] See art1 and 2 of the UN Charter for the purposes and principles of the UN. See art 53(1) of the UN Charter for the role of a regional organisation in undertaking enforcement action.

[[226]] See for instance Constitutive Act (n 17) art 3(f), and (e).

[[227]] See for instance Peace and Security Council Protocol (n 109) art 17(1).

[[228]] See for instance Peace and Security Council Protocol (n 109) art 17 (2).

[[229]] African Union (Assembly of Heads of State and Government) ‘Decision on the Activities of the Peace and Security Council of the African Union and the state of Peace and Security in Africa’ (Addis Ababa 2007) Assembly/AU/Dec.145 (VIII), paragraph 20.

[[230]] See for instance UNSC Presidential Statement 44(2004) UN Doc S/PRST/2004/44; See also UNGA ‘Report of the Secretary-General’ (2003) A/58/352.

[[232]] See African Union (Executive Council) ‘Decision on the Meeting of Experts on the Review of the Experts on the Review of OAU/AU Treaties’  (Addis Ababa, 2004) EX.CL/Dec.129(v)  ; African Union (Executive Council) ‘Decision on the Report of the Status of the OAU/AU Treaties’ (Addis Ababa 2007) EX.CL/Dec.315(x).