African Union: a New Opportunity for the Promotion and Protection of Human Rights in Africa 1. INTRODUCTION The Organization of African Unity (OAU) Heads of State and Government adopted the Sirte Declaration, which called for the establishment of an African Union (The Union) at its Fourth Extraordinary Summit in Sirte, Libya in September 1999. 1 The OAU thus recommitted itself to take up the challenge of promoting and protecting human rights as a matter of priority, and to ensure the early establishment of an African Court on Human and Peoples’ Rights.2 Following the Sirte Declaration, the OAU legal unit produced a draft Constitutive Act (the Act) of the Union, which was then debated in a meeting of legal experts and parliamentarians and later at a ministerial conference in Tripoli, Libya in June 2000. The OAU Heads of State and Government adopted the Act a month after, in July 2000 in Lome, Togo. 3 The Constitutive Act of the African Union 1 See EAHG/DECL.(IV) Rev. 1. The major initiative of the Sirte Declaration is a total reform of the OAU, by replacing it with an African Union, in conformity with the objectives of the Charter of the OAU and treaty establishing the African Economic Community. 2 Id. 3 See CONSTITUTIVE ACT OF THE AFRICAN UNION (see Annex i), adopted by the Thirty-sixth Ordinary Session of the Assembly of Heads of State and Government of the OAU on 11 July 2000 at Lome, Togo. 50 Heads of State and three Heads of Government adopted the Act. Morocco was the only independent African state not represented. It withdrew from the OAU in 1981 in protest against the OAU official recognition of the right of Sahrawi people to self-determination. Amnesty International July 2002 AI Index: IOR 63/002/2002 entered into force on 26 May 2001, thus making the Union a legal and political reality.4 However, the Act recognizes that the Charter of the OAU will remain operative, for a transitional period of one year or such further period as the OAU Heads of State and Government may determine to enable the OAU to undertake the necessary measures regarding the devolution of its assets and liabilities to the African Union. The Constitutive Act will become fully operative in July 2002, after the inaugural Summit of the Union in Durban, South Africa. 4 The Act requires ratifications by two-thirds of the member states of the OAU for the Union to be legally established. This requirement was achieved on 26 April 2001 when Nigeria became the thirty-six OAU member state to deposit its instrument of ratification of the Constitutive Act of the Union with the OAU Secretary-General. African Union: a New Opportunity for the Promotion and Protection of Human Rights in Africa 3 The African Union is loosely modelled on the European Union. Its objectives include achieving African unity, encouraging international cooperation and achieving a better life for the peoples of Africa. Similarly, the Act expresses member states’ determination to promote and protect human and peoples’ rights, consolidate democratic institutions and culture and to ensure good governance and the rule of law in accordance with the African Charter on Human and Peoples’ Rights (African Charter) and other relevant human rights instruments .5 In addition, the Act obligates Member States to promote gender equality and social justice, ensure balanced economic development, and to condemn and reject impunity and unconstitutional changes of government. 6 While maintaining the principle of non-interference in the internal affairs of Member States, the Act also makes provisions establishing, in essence, the principle of non-indifference to the internal affairs of Member States. Thus, the Act specifically provides for the right of the Union to intervene in a Member State in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity. It also provides for the right of Member States to request intervention from the Union in order to restore peace and security. Ultimately, the African Union aims to promote and ensure peace, security and stability on the continent. While the African Union seeks to broaden African cooperation through the development of an economic community and an African Court of Justice, the New Partnership for Africa’s Development (NEPAD)7 offers a plan to deepen this cooperation through the promotion of shared values and standards. However, the NEPAD will operate within the framework of the African Union. Together they create one economic space, and place new and different requirements on each state. Thus, under the new arrangement, African 5 See Preamble 9 of the Constitutive Act of the African Union. 6 See Article 3 of the Constitutive Act of the African Union. 7 The NEPAD is a pledge by African leaders that they have a pressing duty to eradicate poverty and to place their countries, both individually and collectively, on the path of sustainable growth and development. Amnesty International July 2002 AI Index: IOR 63/002/2002 4 African Union: a New Opportunity for the Promotion and Protection of Human Rights in Africa leaders recognize the importance of holding one another accountable for human rights violations. In the early years of the OAU, issues of human rights and the reference to freedom, equality, justice and dignity in the OAU Charter were considered only in the context of self determination and in the ending of colonial rule.8 In contrast, under the African Union framework, a system of peer review, which entails a critical review of each other’s performance; will encourage all states to be responsive to good governance and human rights. Nevertheless, Amnesty International believes that the protection of human rights is the primary responsibility of each individual state. While the African Union has the potential of providing some accountability, each state must be accountable for the human rights situation within its domestic jurisdiction. Amnesty International welcomes the establishment of an African Union as a means of strengthening the regional mechanism for human rights in Africa. In a document entitled Organization of African Unity: Making Human Rights a Reality for Africans, August 1998, (AI Index: IOR63/01/98), Amnesty International makes recommendations for the reform of the OAU to make it more effective in the realization of human rights throughout Africa. Given the continent’s history of serious human rights violations, an African Union is a potentially significant development in the promotion and protection of human rights at the continental level. Despite the adoption of the African Charter on Human and Peoples’ Rights9 (African Charter) by the OAU Heads of State and Government in 1981, and its subsequent entry into force in 1986, and the establishment of the African Commission on Human and Peoples’ Rights10 in 1987, human rights, including economic, social and cultural rights 8 See Organization of African Unity: Making Human Rights a Reality for Africans, August 1998, (AI Index: IOR63/01/98). 9 AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS, adopted 27 June 1981 in Nairobi, Kenya, OAU Doc. CAB/LEG/67/3, Rev. 5, reprinted in I.L.M. 59 (1981). 10 The African Commission is the only mechanism created under the Charter to supervise State Parties’ compliance. Its four areas of mandate are: promotional activities, protective activities (including complaints), the examination of state party reports, and the interpretation of the African Charter. See Credibility in Question....(AI Index: IOR63/02/98). AI Index: IOR 63/002/2002 Amnesty International July 2002 African Union: a New Opportunity for the Promotion and Protection of Human Rights in Africa 5 remain illusory for the vast majority of Africans. It will only be through making human rights central to its work that the regional organization will be able to truly recommit itself to the principles of the Universal Declaration of Human Rights. As the African Union replaces the OAU, it is essential for African leaders to recognize the centrality of human rights and the need to incorporate the human rights dimension in all the work of the regional organization. The fundamental principles enumerated in the Act must be translated into concrete action in reality. In order to do so consistently and effectively, the African Union needs to develop procedures and mechanisms at its General Secretariat and within its political organs. At the same time, African governments that are yet to do so should ratify the Protocol to the African Charter Establishing the African Court on Human and Peoples’ Rights.11 This report looks at the political and other organs created by the Act in terms of their potential to reinforce the promotion and protection of human rights in the continent. It makes recommendations regarding the important role which the political organs of the African Union should play in ensuring that human rights are placed on the agenda of the regional body. The challenge now is for African governments to show that the Union can make a difference in the realization of human and peoples’ rights in Africa, and not just a mere change of name of the OAU. African leaders must now take responsibility for promoting and respecting human and peoples’ rights in the continent. 2. POLITICAL ORGANS 11 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU/LRG/AFCHPR/PROT (III), adopted by the Assembly of Heads of State and Government, 34th Session, Burkina Faso, 8-10 June 1998. Amnesty International July 2002 AI Index: IOR 63/002/2002 6 African Union: a New Opportunity for the Promotion and Protection of Human Rights in Africa The political organs of the Union which will oversee the functioning of the Organization and make its policies consist of the Assembly of the Union, the Executive Council, the Permanent Representatives Committee, the Specialised Technical Committee and the Pan-African Parliament.