Addis Ababa, Ethiopia 2–27 February 2015 STUDY MATERIALS INTRODUCTION TO AFRICAN UNION LAW AND INSTITUTIONS Codification Division of the United Nations Office of Legal Affairs Copyright © United Nations, 2014 Location of Sources The materials included in this Study Book have been provided by the African Union. Most of the documents reproduced can be found within the Resources section on the website of the African Union: http://au.int/en/treaties. Addis Ababa, Ethiopia 2–27 February 2015 PROFESSOR ADELARDUS KILANGI Codification Division of the United Nations Office of Legal Affairs Copyright © United Nations, 2014 INTRODUCTION TO AFRICAN UNION LAW AND INSTITUTIONS PROFESSOR ADELARDUS KILANGI Outline i Legal Instruments and Documents General 1. Charter of the Organization of African Unity, 1963 8 2. General Convention on the Privileges and Immunities of the Organization of African 16 Unity, 1965 3. Additional Protocol to the General Convention on Privileges and Immunities, 1980 22 4. Constitutive Act of the African Union, 2000 28 5. Protocol of the Court of Justice of the African Union, 2003 38 6. Protocol on Amendments to the Constitutive Act of the African Union, 2003 54 7. Statute of the African Union Commission on International Law, 2009 60 Human rights 8. Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 68 9. African Charter on Human and Peoples' Rights, 1981 74 10. African Charter on the Rights and Welfare of the Child, 1990 84 11. Protocol to the African Charter on Human and Peoples' Rights on the Establishment of 96 an African Court on Human and Peoples' Rights, 1998 12. Grand Bay (Mauritius) Declaration and Plan of Action (Organization of African Unity, 102 First Ministerial Conference on Human Rights in Africa, Declaration I, 16 April 1999) 13. Kigali Declaration (African Union, First Ministerial Conference on Human Rights in 108 Africa, Declaration 1 (I), 8 May 2003) 14. Protocol to the African Charter on Human and Peoples' Rights on the Rights of 114 Women in Africa, 2003 15. African Youth Charter, 2006 132 16. Protocol on the Statute of the African Court of Justice and Human Rights, 2008 144 17. African Union Convention for the Protection and Assistance of Internally Displaced 160 Persons in Africa, 2009 18. Human Rights Strategy for Africa, Department of Political Affairs, African Union 172 Commission (14 December 2011) Environment 19. Phyto-Sanitary Convention for Africa, 1967 182 20. African Convention on the Conservation of Nature and Natural Resources, 1968 186 21. Bamako Convention on the Ban of the Import into Africa and the Control of 198 Transboundary Movement and Management of Hazardous Wastes within Africa, 1991 22. African Convention on the Conservation of Nature and Natural Resources, 2003 216 Economy and Development 23. Revised African Maritime Transport Charter, 2010 234 Peace and Security 24. OAU Convention for the Elimination of Mercenarism in Africa, 1977 248 25. Organization of African Unity Convention on the Prevention and Combating of Terrorism (For text, see International instruments related to the Prevention and Suppression of Terrorism, United Nations, New York, 2008, p. 220) 26. Declaration on the Framework for an OAU response to Unconstitutional Changes of 254 Government (Lomé Declaration) (Organization of African Unity, Assembly of Heads of State and Government, Declaration 5 (XXXVI), 12 July 2000) 27. Protocol Relating to the Establishment of the Peace and Security Council of the 258 African Union, 2002 28. Protocol to the Organization of the African Union Convention on the Prevention and Combating of Terrorism, (For text, see International instruments related to the Prevention and Suppression of Terrorism, United Nations, New York, 2008, p. 272) 29. The African Union Non-Aggression and Common Defence Pact, 2005 278 Good Governance 30. African Union Convention on Preventing and Combating Corruption, 2003 288 31. African Charter on Democracy, Elections and Governance, 2007 304 32. African Charter on Values and Principles of Public Service and Administration, 2011 316 Elections 33. Guidelines for African Union Electoral Observation and Monitoring Missions 326 (EX.CL/91 (V), 2002) INTRODUCTION TO AFRICAN UNION LAW AND INSTITUTIONS: COURSE OUTLINE PROFESSOR ADELARDUS KILANGI 1. Introduction 1.1 African Union Law and Institutions i) this is a regional system of law - also called a regional regime of law ii) Such a system must have a background and context iii) Such a system must have its internal logic 1.2 Categories of Laws in a Regional System or Regional Regime of Law 1.2.1 Hard law i) Treaties & conventions ii) Statutes 1.2.2 Soft Law i) Declarations, decisions, pronouncements ii) Statements and common positions of States and the regional body iii) Judicial decisions? 1.3 Relationship between Law and Institutions • Law and the creation of functions and responsibilities, rights, duties and obligations • Establishment of institutions to cater for the functions and responsibilities, rights, duties and obligations 2. Theoretical Considerations which Must Underpin the Discussion on African Union Law and Institutions 2.1 Significations of the Concept ‘African Union Law’ • Is it African international law? • Is it international law in Africa? 2.2 Background and Context to African Union Law 2.2.1 History of Unity and Cooperation in the Continent of Africa - 1950s – 1960s - Pan-Africanism associated with colonialism - 1958 - Initiatives by Ghana, Guinea and Mali (a Charter for Union of African States) i - 1961 – Casablanca Conference - Algerian Republic (CPRA), Tunisia, Nigeria, Liberia and Togo – (An African Charter, setting up an African Military command and an African Common Market) - Btn October 1960 and March 1961 three conferences by French speaking African countries - Abidjan, Brazzaville and Yaoundé - led to the signing in September 1961, at Antananarivo of a charter establishing the Union Africaine et Malgache, later to be named as the Organisation Commune Africaine et Mauricienne (OCAM) - May 1961 - a conference at Monrovia, Liberia - attended by 19 countries [Cameroon, Central African Republic, Chad, Congo Republic, and Côte d'lvoire, Dahomey (now Benin), Ethiopia, Gabon, Liberia, Madagascar, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Somalia, Togo, Tunisia and Upper Volta (now Burkina Faso)] - met again (with the exception of Tunisia and with the addition of the ex-Belgian Congo Republic in January 1962 at Lagos, Nigeria), and set up a permanent secretariat and a standing committee of finance ministers and accepted a draft charter for organization of Inter-African and Malagasy States. - 23 May 1963 - Heads of State Conference in Addis Ababa - drew up the Charter of the Organization of African Unity - signed by 30 States on 25 May 1963. - Themes covered in the Conference that formed the OAU: (i) creation of the organization of African States; (ii) cooperation among African States in the following fields: economic and social, education, culture and science; and collective defense; iii) decolonization; iv) apartheid and racial discrimination v) effects of economic groupings on the economic development of Africa; vi) disarmament vii) Africa and the United Nations. 2.2.2 Other Challenges Facing the Continent of Africa - Statehood - Refugees and internal displacement - Territorial and boundary disputes - Civil wars and armed conflicts - Coups d’états and other forms of unconstitutional change of government - Bad governance and lack of democracy - Massive violations of human rights - The need for strengthening economic cooperation, development, and integration among African countries in order to stand the wrath of powerful economic countries - concerns over the prevailing patterns in international trade and investment ii - Exploitation of mineral and other resources of the continent 2.3 Elements of African Union Law 2.3.1 International Organizations Law The AU is established as an international organization – therefore, African Union law must have elements of international organizations law. This law has the following sub-elements: i) Establishment - Act of establishment - Membership - Functions and objectives - Legal personality - Rights, privileges and immunities - Duties and responsibility - Relations – with member States and other organizations - Dissolution and succession ii) Sources of law for the organization - Law Made by the Union (treaties - hard law) - Law Developed through Decisions of Organs (laws made by organs with legislative powers - mostly soft law) - Law of Member States - Law Applied by the Union iii) Institutional framework and decision making system - Policy functions - policy organs - Executive functions - executive organs - Legislative functions - legislative organs - Judicial functions - judicial organs iv) Relationship with member States – concept of supranationality - How do States define, and what approach to supranationality? - Is it transfer of powers? - Is it creation of an agency? - Is it creation of a common platform? iii 2.3.2 Regional Integration Law The AU is an organization established to foster cooperation and integration in the African continent – therefore it must have elements of regional integration law. This law has the following sub-elements: i) Defining the concept of integration - What is the purpose of integration? - What type or category of integration do States intend pursuing? - What do the integrating States envisage doing to achieve their integration dream? ii) Defining the frameworks and areas for