REIMAGINING AFRICAN UNITY: SOME PRELIMINARY REFLECTIONS ON THE CONSTITUTIVE ACT OF THE AFRICAN UNION

in African Yearbook of International Law Online / Annuaire Africain de droit international Online
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REIMAGINING AFRICAN UNITY: SOME PRELIMINARY REFLECTIONS ON THE CONSTITUTIVE ACT OF THE AFRICAN UNION

in African Yearbook of International Law Online / Annuaire Africain de droit international Online

References

1 The following countries signed the Constitutive Act during the formal signing ceremony on 12 July 2000: Algeria, Benin, Burkina Faso, Burundi, Cape Verde, Central African Republic, Chad, Djibouti, Equatorial Guinea, Ethiopia, Gabon, Gambia, Ghana, Guinea Bissau, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Niger, Sahrawi Arab Democratic Republic, Senegal, Sierra Leone, Sudan, Togo and Zambia. By 3 March 2001, the Act had been signed by all the fifty-three Member States of the OAU. Article 28 provides: "This A. A. YUSUF (ed.), African Yearbook of International Law, 3-38. 0 2002 African Association of International Law, Printed in The Netherlands.

Act shall enter into force thirty (30) days after the deposit of instruments of ratification by two-thirds of the Member States of the OAU", i.e. thirty-six signatories. On 26 April 2001 Nigeria became the thirty-sixth signatory to deposit the instrument of ratification with the OAU Secretary General. The Constitutive Act accordingly entered into force on 26 May 2001. As at 30 September 2001, all the OAU Member States, except the Democratic Republic of Congo and Madagascar, have ratified the Constitutive Act. 2 The Charter Review Committee was established by the Assembly by decision AHG/Dec.l ll (XVI) at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979. The committee held its first session in Mogadishu, Somalia, from 7 to 12 April 1980. It met six times between 1980 and 1996, when it held its last session in Addis Ababa, Ethiopia, from 9 to 15 May 1996.

3 In the absence of any scientifically verifiable opinion polls on this matter, it is difficult to assess or quantify the level of support for, or opposition to, the proposed African Union in the various countries. However, in addition to general discussions conducted in various national news media in some African countries, there has been a fair amount of debate conducted through the pages of such international news magazines as African Events, Jeune Afrique, New African and West Africa, to name only a few examples.

4 For discussions of the different perspectives of this approach, see the various contributions in B. HETTNE, A. INOTAI and O. SUNKEL (eds.), Globalism 5 and the New Regionalism, (London: Macmillan, 1999). 5 Letter from Secretary of the General People's Committee for Foreign Liaison and International Cooperation of the Great Socialist People's Libyan Arab Jamahiriya to the Secretary General of the OAU, 28 September 1998; copy on file with the author.

6 The Libyan request was communicated by Note Verbale No. 53/99, dated 15 April 1999. Only four countries formally reacted to the proposal for the convening of the extraordinary summit: Liberia, Niger and Sudan supported it, while South Africa was not in favour of the proposal. 7 Decision AHG/Dec.140 (XXXV).

8 The first collective response by African countries to the changes taking place in the world following the collapse of the Berlin Wall in 1989 is encapsulated in the Declaration on the Political and Socio-Economic Situation in Africa and the Fundamental Changes Taking Place in the World, adopted by the OAU Assembly of Heads of State and Government in July 1990 at its Twenty-sixth Ordinary Session in Addis Ababa, Ethiopia. The project for the continental economic integration of Africa was given a formal legal basis with the adoption of the Treaty establishing the African Economic Community in 1991. The focal points for regional integration in Africa are the various Regional Economic Communities (RECs), some of which were established prior to the adoption of the treaty, which are perceived by the Treaty establishing the African Economic Community as its "building blocks" (Article 6). 9 See Jeune Afrique Economie 314 (7 August - 3 September 2000), p. 59. Thus, two months after the adoption of the Constitutive Act of the African Union, The Economist could still insist that "Libya's ruler dreams of a United

States of Africa, with himself as leader", despite the fact that the Constitutive Act does not provide for the establishment of a United States of Africa anywhere in its provisions. See The Economist (16 - 22 September 2000), p. 51. " See decision AHG/Dec.127 (XXX1V): The Crisis Between the Great Socialist People's Libyan Arab Jamahiriya and the United States of America and the United Kingdom. In the pertinent part of the decision, the Assembly: "1. [CALLS UPON] the Security Council to adopt a resolution suspending the sanctions imposed on Libya under Resolutions 748 (1992) and 883 (1993) until the International Court of Justice pronounces its verdict on the issue; 2. DECIDES not to comply any longer with Security Council Resolutions 748 (1992) and 883 (1993) on sanctions, with effect from September 1998, if the United States of America and the United Kingdom refuse that the two suspects be tried in a third neutral country pursuant to the verdict of the International Court of Justice by July 1998, [the] date on which the sanctions will be due for review, owing to the fact that the said resolutions violate Article 27 paragraph 3, Article 33 and Article 36 paragraph 3 of the United Nations Charter, and the considerable human and economic losses suffered by Libya and a number of other African peoples as a result of the sanctions; 3. DECIDES on moral and religious grounds and with immediate effect that the OAU and its members will not comply from now on with the sanctions imposed against Libya related to religious obligations, providing humanitarian emergencies or fulfilling OAU statutory obligations."

12 It is not coincidence, either, that the purpose-built ultra-modern conference facility in Sirte, where the extraordinary summit was held, is called the "Ouagadougou Halls Complex''. This is thought to be in appreciation and commemoration of the Ouagadougou summit decision. '3 This critique was also articulated in Colonel Ghaddafi's speech delivered on 31 May 2000 to the OAU Ministerial Conference on the Establishment of the African Union and the Pan-African Parliament held in Tripoli, Libya, 31 May - 2 June 2000.

'4 See O. OKAFOR, "After Martyrdom: International Law, Sub-State Groups, and the Construction of Legitimate Statehood in Africa", 41 Harvard International Law Journal 503 (2000). Wole Soyinka has also strongly attacked the arbitrary colonial partition of Africa and the deprivation of organic identities and its costly consequences. In an apparent reference to the 1964 OAU Resolution on Border Disputes Among African States, he goes on to charge that "the OAU [formally] consecrated this act of arrogant aggression, reinforced by civil wars on varied scales of mutual destruction in defence of the imperial mandate"; see W. SOYINKA, The Burden of Memory, The Muse of Forgiveness, (Oxford/New York: OUP, 1999), pp. 40-41. But for a different perspective, see A. MBEMBE, "At the Edge of the World: Boundaries, Territoriality, and Sovereignty in Africa", CODESRIA Bulletin 3 & 4 (1999), p. 4, at p. 6 where he states, inter alia: "[It] is clear that the boundaries inherited from colonization were not defined by Africans themselves. But contrary to a common assumption, this does not necessarily mean that they were arbitrary. [Moreover], to state that current African boundaries are merely a product of colonial arbitrariness is to ignore their multiple geneses. In fact, their establishment ante-dated the Congress of Berlin, whose objective was to distribute sovereignty among the different powers engaged in dividing up the Continent". For other views on this subject, see P. NUGENT and A. J. AS1WADU (eds.), African Boundaries: Barriers, Conduits and Opportunities, (London: Pinter, 1996), passim. 15 Resolution on Border Disputes Among African States: AHG/Res.16 (I), adopted on 21 July, 1964. The principle of uti possidetis was effectively characterized as a principle of regional international law in Africa by the International Court of Justice in the Frontier Dispute (Burkina Faso v Mali) Case; see ICJ Reports 1986, p.554.

16 Both Presidents Olusegun Obasanjo of Nigeria and Thabo Mbeki of South Africa played critical roles in the debates and consultations which produced the compromise that formed the basis for the Sirte Declaration. Their respective support for the proposed Constitutive Act of the African Union in the Lome summit was equally critical to securing its adoption after initial expressions of reservations by a number of delegations both at the ministerial and summit levels. However, Ghaddafi's self-image as "the leader of Africa" cannot be ignored. Any recent visitor to Tripoli will testify to the adornment of various major points and buildings in the city with murals and slogans displaying or proclaiming Ghaddafi's various poses and roles as the "leader", "guide" or "liberator" of the African continent and its people.

See B. HETTNE, "Globalization and the New Regionalism: The Second Great Transformation" in HETTNE, 1NOTAI and SUNKEL, op. cit., note 4 supra, p. 1. ls See S. AM1N, "Regionalization in Response to Polarizing Globalization", in HETTNE, INOTA1 and SUNKEL, ibid. p. 54.

The Treaty establishing the African Economic Community was signed by African heads of state and government in Abuja, Nigeria, on 3 June 1991 and entered into force on 12 May 1994; it is more commonly referred to as the Abuja Treaty. 20 There are seven OAU-recognized Regional Economic Communities: Arab Maghreb Union (AMU), Common Market for Eastern and Southern Africa (COMESA), Community of Sahel-Saharan States (CEN-SAD), Economic Community of Central African States (ECCAS), Economic Community of West African States (ECOWAS), Intergovernmental Authority on Development (IGAD) and Southern African Development Community (SADC). It should be noted that the membership of these RECs does not necessarily and completely coincide with membership of the geographical regions into which OAU Member States are divided: Central Africa, East Africa, North Africa, Southern Africa and West Africa. Furthermore, there is also a considerable degree of overlapping membership between the different organizations, with some countries belonging to as many as three different RECs, and some RECs drawing their membership from at least three different OAU geographical regions. Among other sub-regional groupings which have not yet sought or acquired the status of OAU-recognized RECs are: Economic and Monetary Community of Central Africa (CEMAC), Economic and Monetary Union of West Africa (UEMOA), Economic Community of Great

Lakes Countries (ECGLC), East African Community (EAC) and Southern African Customs Union (SACU). 21 Teshome MULAT, "Multilateralism and Africa's Regional Economic Communities", 32J.W.T. 115 (1998), p. 119. 22 ALEC Economic and Social Commission, First Session, 11 - 12 June 1996: Strategy and Approach to the Implementation of the Treaty establishing the African Economic Community, (AEC/ECOSOC 3(1) Rev. 1). z3 Ibid., p. 138.

The Libyan authorities had actually earlier circulated two draft documents to a number of selected OAU Member States. These drafts were entitled, respectively: Draft of the Establishment of the Union of African States, and Draft of the Establishment of a State of the United States of Africa. The existence of these draft texts was never officially admitted by Libya, at least to the OAU General Secretariat. In any event, the draft "Sirte Declaration'' which Libya subsequently submitted to the summit was significantly different from either of these two earlier drafts.

25 The invitation by Libya turned out to be somewhat premature. By the time the Fifth Extraordinary Summit was convened in Sirte on 1 March 2001, the Constitutive Act had not yet secured the necessary number of ratifications in accordance with Article 28 of the Act. For current state of ratifications, see note 1 supra.

26 The General Secretariat had initially engaged a group of consultants to assist it in formulating the draft legal texts for both the African Union and the Pan- African Parliament. The original draft texts elaborated by the consultants and the General Secretariat were amended considerably and drastically in the course of the subsequent deliberations of both the experts' meetings and the ministerial meeting.

27 Decision EAHG/Dec.l (V), adopted by the Fifth Extraordinary Session of the Assembly of Heads of State and Government on 2 March 2001, states, inter alia, that: "[The Assembly decides]: 1. To proudly declare the establishment of the African Union by the unanimous will of the Member States; 2. That the legal requirements for the Union will have been completed upon the deposit of the 36`" instrument of ratification of the Constitutive Act of the African Union; 3. That the Constitutive Act of the African Union shall enter into force thirty (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]."

28 The association of the African Union with Libya and, in particular, Colonel Ghaddafi has been reiterated in the international media's eye following the decision by the Fifth Extraordinary Session of the Assembly of the Heads of State and Government to declare the establishment of the African Union in Sirte. Thus, following the adoption of the decision, a London-based newspaper remarked: "African leaders ended a two-day summit in Libya by endorsing a plan by Muammar Ghaddafi [for] an African Union. Libya's plan will not be put in place until it is ratified by two-thirds of the 53 members of the Organization of African Unity". See The Observer, London (4 March 2001), p. 22. It is remarkable that some commentators, both within and outside Africa, still insist on characterizing the project of establishing the African Union as "Ghaddafi's or Libya's plan", and not that of the entire membership of the OAU.

29 See OKAFOR, op. cit., p. 511. See also same author's, Re-Defining Legitimate Statehood: International Law and State Fragmentation in Africa, (The Hague: Kluwer Law International, 2000), passim.

30 See AHG/Dec.159 (XXXVI) Decision on Chagos Archipelago. In terms of this decision, the Assembly: "[Expresses] concern that the Chagos Archipelago was unilaterally and illegally excised by the colonial power from Mauritius prior to its independence in violation of UN Resolution 1514", and "[urges] the UK Government to immediately enter into direct and constructive dialogue with Mauritius so as to enable the early return of the sovereignty of Mauritius." Before its dissolution, the OAU Coordinating Committee for the Liberation of Africa, on a number of occasions, included on its agenda items relating to the territorial status of the Canary Islands and Reunion Island, which remain under Spanish and French sovereignty, respectively. However, these no longer feature on the political agenda of the OAU. Recent attempts by the Frente Popular por la Independencia de Canarias (FREPIC-AWANAK), a Canary Islands group campaigning for the independence of the islands from Spain, to be recognized as an African national liberation movement and to involve the OAU in this campaign, have never been formally presented to or taken up by the policy organs of the OAU.

31 See C. GRAY, International Law and the Use of Force, (Oxford: O.U.P., 2000), p. 215 et seq.

3z See decisions AHG/Dec.141 (XXXV) and AHG/Dec.142 (XXXV) adopted by the Thirty-fifth Ordinary Session of the Assembly of Heads of State and Government held in Algiers, Algeria, from 12 to 14 July 1999 on unconstitutional changes of government; see also the Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government, adopted by the Thirty-sixth Ordinary Session of the Assembly of heads of State and Government held in Lome, Togo, from 10 to 12 July 2000: AHG/Deci.5 (XXXVI).

33 The Thirty-seventh Ordinary Session of the Assembly of Heads of State and Government meeting in Lusaka, Zambia, from 9 to 11 July 2001 decided on a one year transitional period, effective from the date of the adoption of the decision, i.e. 11 July 2001; see Decision AHG/Dec. 160 (XXXVII), § 15.

3a Emphasis mine.

3s It is an undeniable fact that the debate about the African Union has almost exclusively been undertaken by African political leaders within the formal discussion chambers of the OAU and, to a very limited extent, in some sections of the international and national media. However, there does not seem to have been a full engagement of this issue by ordinary people representing the larger sections of civil society in any of the OAU Member States. The limited dialogue on this, such as there has been, has largely been confined to national parliaments in those few countries which have so far ratified the Constitutive Act, as part of the ensuing debates in the course of the ratification process.

36 Speech delivered on 15 August 1994 in Dar es Salaam, Tanzania; copy on file with the author.

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