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The African Union and Collective Security in Africa

Girmachew Alemu*

 

Not long after independence from the colonial powers, inter-state and intra-state conflicts, tyranny perpetuated by dictatorial governments and gross human rights violations became the identifying marks of Africa. Rugumamu (2001, 4), explaining the essence of conflicts and conflict mapping, stated that competition and conflict are regarded as ‘inherent phenomena’ of any society. However, in most parts of the world, nations and people have developed a structured system for the prevention, management and resolution of conflicts. It could be postulated that the African continent is an exception to such developments. As a regional organisation, the OAU has done little to address this crisis in the continent and has been enveloped by many other problems. The scourge of conflict continues to destroy human and material resources on the African continent and remains its primary challenge.

Partly because of dissatisfaction with the OAU’s performance in dealing with the major challenges of Africa and partly because of the new developments in international politics, African leaders decided to transform the OAU into a new regional organisation, the AU. The Constitutive Act of the AU was adopted by the OAU meeting of Heads of State and Government in July 2000 in Lome, Togo, and entered into force in May, 2001 (Heyns 2004, 99).When OAU was transformed into the AU, many citizens of Africa asked if the AU was any different from its predecessor, the OAU, in terms of meeting the contemporary challenges of Africa. This article attempts to reflect on the above question partly in relation to the maintenance of peace and security by the AU. Specifically, the article examines the conception of the principle of non-interference under the AU in relation to intra-state conflicts, and also highlights on the newly provided mechanisms of the AU for the prevention, management and resolution of intra- and inter-state conflicts.

To begin with, the Constitutive Act of the AU recognises the right of all member states to live in peace and security (Constitutive Act 2000, Article 4 (i)). The Constitutive Act of the AU restated the principle of non-interference as one of the basic principles of the organisation. Specifically Article 4 (g) of the Constitutive Act states that one of the principles of the Union is “non-interference by any member state in the internal affairs of another”. This formulation is different from the formulation under the United Nations (UN) Charter, which specifically deals with the intervention of the UN in the internal affairs of member states, rather than the relation between member states (UN Charter Article 2(7)). The AU’s Constitutive Act is different from the OAU Charter in its clear exceptions to the non-interference norm.

The AU is given the right to intervene in member states when war crimes, genocide and crimes against humanity are committed (Constitutive Act 2000, Article 4(h)). A member state is also given the mandate to request intervention from the AU to restore peace and security within its national borders (Article 4(J)). As such, intervention under AU is essentially solidarist, whereby sovereignty is qualified by obligations that should be respected by member states. A mass violation of the rights of citizens by a member state, as well as a lack of peace and stability in a member state, will make intervention by the AU justified. Intervention in such cases implies the option to use force by the AU if it is necessary to stop continuing human rights violations and resolve conflicts. However, it is not clear what mechanisms are to be used by the AU in order to determine the existence of the specified preconditions for intervention. Nevertheless, the marked difference between the AU and the OAU is the AU’s relatively clear legal delineation of when intervention by AU will be justified. Whilst the OAU was not conventionally banned from justified intervention, the lack of clearly stated exceptions to its non-interference norm was used by many member states to reject the involvement of the organisation in all internal affairs.

What is more, a close analysis of the Constitutive Act of the AU and other relevant principles shows us that the AU is given a wider mandate for intervention than what is mentioned in Article 4(h) and (j) of its Constitutive Act, the latter being more of military intervention. The AU is given the power to anticipate and prevent conflicts (Peace and Security Council Protocol, Article 7). The anticipation and prevention of conflicts involves pro-active steps in and by member states. In a possible human rights violation case, such a task can only be performed if the AU, through its Peace and Security Council and in collaboration with the African Commission on Human and Peoples’ Rights, is able to interfere in a member state before the situation becomes ‘grave’. In this regard the African Human Rights Commission is duty bound to bring all relevant information to the attention of the Peace and Security Council (Peace and Security Council Protocol, Article 19). In the past, state practice under the OAU showed that, due to the interpretation given to the non-interference principle, the organisation was not considered to be competent even to discuss internal events or pass resolutions on them without the permission of the concerned state (Walraven 1996, 295).

The AU’s intervention which is based on the request of a member state in order to restore peace and security implies open consent on the part of the state. However, the need for consent may be problematic in cases where it is impossible to get the consent because of a serious threat to peace and legitimate order in a member state. The recommendation of the Executive Council of the AU for the amendment of Article 4(h) of the Constitutive Act alludes to this problem when it recommends that the African Union be given the right to restore peace and stability in a member state when there is a serious threat to legitimate order rather than wait for the invitation of the concerned state (Constitutive Act with Amendment 2003). In either case, another major problem is what it would take to restore peace and security in a member state. The mandate and the activity demanded from the AU will definitely depend on each and every case.

Legally speaking, the AU is accorded with a clearer mandate for intervention that will enhance its role in the prevention, management and resolution of conflicts in member states. The fact that the AU acquired a clearer mandate to intervene in intra-state conflicts may show that member states have political will to allow the organisation to play a meaningful role in reducing the serious conflicts in the continent. However, the implementation of the new principles is not an easy task at all. The military intervention to restore peace and security will be the most daunting task for many reasons. It is not only economically demanding but also politically delicate. It is thus very crucial to avoid the necessity of military intervention by maintaining peace and security through pro-active measures, such as rejection of unconstitutional seizure of political power and the protection of the human rights of citizens, which, in turn, can contribute to the prevention of conflicts.

The establishing document of the AU, the Constitutive Act, provides for a peaceful resolution of conflicts among member states “through appropriate means as may be decided upon by assembly of the union” (Constitutive Act 2000, Article 4 (e)). Surprisingly, the Constitutive Act is silent on mechanisms for the prevention, management and resolution of conflicts in Africa. On the other hand, the 37^th ordinary session of the Assembly of Heads of State and Government of the OAU held in Lusaka, Zambia, from 9 to 11 July 2001, decided to incorporate the Central Organ of the 1993 OAU Mechanism for Conflict Prevention, Management and Resolution as one of the organs of the AU in accordance with Article 5(2) of the Constitutive Act of the AU (Peace and Security Council Protocol, Preamble). The Assembly further requested the Secretary-General to undertake a review of the structures, procedures and working methods of the Central Organ of the 1993 mechanism, including the possibility of changing its name. Accordingly, the 76^th session of the OAU Council of Ministers, held in Durban, South Africa, from 28 June to 6 July 2002, adopted the Protocol on the establishment of the Peace and Security Council of the AU to replace the 1993 OAU Mechanism for Conflict Prevention, Management and Resolution (Peace and Security Council Protocol, Preamble).

The Protocol relating to the establishment of the Peace and Security Council of the AU entered into force in 2003. Among the principles that guide the Peace and Security Council is the principle of non-interference by a member state in the internal affairs of another, enshrined under Article 4(f) of the Protocol on the establishment of the Peace and Security Council. As an organ of the AU, the Peace and Security Council is also to be guided by the intervention right of the AU. The Peace and Security Council is the organ that recommends possible intervention to the Assembly of the AU.

The Peace and Security Council Protocol of the AU reaffirmed that no single factor has contributed as much as intra-state and inter-state conflicts to the socio-economic decline on the continent and to the suffering of millions of people, including women and children, and leading “into a drifting life as refugees and internally displaced persons, deprived of their means of livelihood, human dignity and hope” (Peace and Security Council Protocol, Preamble). The Peace and Security Council is provided with the power to anticipate and prevent disputes and conflicts as well as to undertake peace-making and peace-building functions to resolve conflicts (Article 7a,b). In the field of anticipation and prevention of conflicts, the Council protects and promotes democratic practices, good governance, the rule of law and human rights in member states (Article 7(m)).

In order to facilitate peace-making and peace-building functions, the Peace and Security Council is provided with the power of recommendations to the Assembly of the AU for intervention in a member state in the event of grave circumstances, namely war crimes, genocide and crimes against humanity (Article 7(e)). The recommendations and other decisions of the Council follow the principle of consensus, and in cases where consensus cannot be reached, decision must be made by a two-thirds majority vote of its members (Article 8(13). What is more, the Council is empowered to authorize the mounting and deployment of peace support missions in conflict situations. The Protocol for the establishment of the Council envisages the establishment of an African Standby Force composed of civilian and military personnel for the purpose of peace-making and peace-building by way of intervention as well as deployment of peace missions (Article 13). A relatively new mandate provided for the Council is the mandate to institute sanctions whenever an unconstitutional change of government takes place in member states (Article 7(g)). The rejection of unconstitutional change of government, if coupled with the support for democratic change of government, may contribute to the prevention of conflict on the continent.

Even if the powers accorded to the Peace and Security Council seem to be reasonably wide, the Peace and Security Council Protocol exhibits two major shortcomings in terms of the mandate of the Council. The first shortcoming is the lack of power of the Council to make the final decision to implement Article 4(h) of the Constitutive Act of the AU which gives a mandate to the AU to intervene in a member state. Even if the Peace and Security Council may become aware of actual grave human rights violations enumerated under Article 4(h) of the Constitutive Act of the Union (i.e. genocide, crimes against humanity and war crimes), the final decision for intervention lies with the Assembly of the Union. Such a requirement not only makes the decision-making procedure lengthy, but in situations where urgent direct intervention is needed the Assembly may decide not to intervene because it tends to be more of a political body. The second major shortcoming is the failure of the Peace and Security Council Protocol to come up with specific powers and institutions through which the Council can enforce its decisions. By ratifying the Protocol relating to the establishment of the Peace and Security Council, all member states of the AU are expected to implement the decisions of the Council. In the case of a failure on the side of member states to implement the decisions of the Council, the Protocol provides no instrument and institutions for the enforcement of the decisions of the Peace and Security Council. The Constitutive Act of AU, in general terms, provides that its Assembly will ensure compliance by member states with the decisions of the Union (Constitutive Act 2000, Article 23(2)). Although this may apply to the decisions of the Council as well, not only is it unclear as to what measures the Assembly may take, but also the process will be a lengthy one and ineffective because of the political nature of the Assembly.

In terms of structure, the Peace and Security Council is a standing decision-making organ in the AU for the prevention, management and resolution of conflicts in Africa, although the Council is not mentioned under the Constitutive Act of AU (Peace and Security Council Protocol, Article 2 (1)). The Peace and Security Council is to be supported by the Secretariat of the AU, a Panel of the Wise, a Continental Early Warning System, an African Standby Force and a Special Fund (Article 2(1)). The members of the Council are fifteen in number and are elected on the basis of equal rights and on the principles of equitable regional representation and rotation (Article 5(1)).

Similar to the Central Organ of the 1993 OAU Mechanism, there is no provision for permanent and non-permanent members of the Peace and Security Council. However the establishment Protocol of the Peace and Security Council provides detailed criteria for membership of states to the Council. The 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 honour financial obligations of the Union (Peace and Security Council Protocol, Article 5). The Protocol also provides that the Assembly shall conduct a periodic review to assess the extent to which members of the Council continue to meet the membership criteria. Effective collective security regimes in Africa may require hegemonic leadership. Arguably, the criteria for membership of the Peace and Security Council of the AU may lead to controlled hegemony in so long as the requirements are observed at the time of entry to the Council and after entry through the review mechanism. This may also be a practical solution to the need for hegemonic leadership as Africa is yet to witness groups of states that are strong enough to give hegemonic leadership by pulling others to accept a common standard.

Apart from the Peace and Security Council, the AU has also decided to set up a subcommittee on peace and security that focuses on the prevention, management and resolution of conflicts under the structure of the New Partnership for Africa’s Development (NEPAD) (Baimu 2002). From the outset, NEPAD has emphasised the need for settlement of conflicts in Africa for any meaningful development. However, there is no clear understanding on the relationship between the Peace and Security Council and the NEPAD structure for the prevention, management and resolution of conflicts, both being under the AU. Institutionally speaking, NEPAD also seems to suffer from a lack of ownership as it has been moved back and forth between South Africa and the AU headquarters in Addis Ababa.

Another important body relevant to the maintenance of peace and security under the AU is the African Court of Justice. The Constitutive Act of the AU provides for the establishment of a Court of Justice (Constitutive Act 2000, Article 18). The Interim Chairperson of the African Union Commission initiated the process of establishing an African Court of Justice in 2003 (African Court Draft Protocol 2003). Accordingly, a draft Protocol relating to the statute, composition and functions of the Court of Justice of the AU was issued for discussion among legal experts and was eventually adopted by the Assembly of the AU in July 2003. However in 2004, the Assembly of the AU decided to merge the Court of Justice with the new African Court on Human and Peoples’ Rights (Assembly/AU/Dec.45, (III)). The main reason provided for the decision by the Assembly to merge the two courts was the lack of funds to run two independent and fully operational regional courts. Even though the reason is realistic there are many issues that crop up because of the merger decision. For instance, the issue of jurisdiction between the two courts needs to be clarified. Again, it is not clear if the two courts will work in parallel or will be merged into one new regional court. What is more, the African Court on Human and Peoples’ Rights has already become operational since January 25, 2004 while the Court of Justice is still in the process of ratification. Thus the decision to merge the two may mean another delay against the long awaited judicial protection of human rights on the continent.

Conflicts in Africa are still a big obstacle to development and continue to be a major challenge on the continent. One of the main purposes of transforming the OAU into the AU is to develop principles and institutions suitable for more meaningful and effective prevention, management and resolution of conflicts. The OAU was marginalized from involvement, especially in intra-state conflicts of member states, because of the interpretation given to the principles of sovereignty and non-interference enshrined in its Charter.

The Constitutive Act of the AU came up with a broader and clearer mandate for a suitable role for the AU in the prevention, management and resolution of intra-state conflicts. The AU’s progressive interpretation of the principle of sovereignty is evident from the provision of the right to intervention in member states by the organisation in specified conditions. However, the progressive move is not supported by effective decision-making procedures. In cases where military intervention is needed, the decision-making process of the AU is made lengthy and ineffective because the decision of the Peace and Security Council is made subject to the approval of the Assembly of the Union. In other cases where the Peace and Security Council makes the final decision, it lacks enforcement organs.

Institutionally, the AU organs, which can contribute to effective prevention, management and resolution of conflicts, are not coordinated. The relations between the Peace and Security Council, the main organ responsible for the maintenance of continental peace and security, and organs like the NEPAD, the African Human Rights Commission, and other relevant organs need to be worked out. The decision to merge the African Court for Human and Peoples’ Rights and the AU Court of Justice need not give rise to another long delay if the AU is to contribute to a better prevention and resolution of conflicts on the continent.

References:

Assembly/AU/Dec.45 (III), Third ordinary session, Addis Ababa, 6-8, July 2004.

Baimu, Evarist. 2002. Human rights and structures under NEPAD and the African Union: Emerging trends towards proliferation and duplication. Centre for Human Rights, University of Pretoria, Pretoria.

Constitutive Act of the African Union. 2000. Lome, Togo.

Constitutive Act of the African Union with amendments proposed by member states (Constitutive Act with Amendments). 2003. The Assembly of the Union, 1^st Extraordinary Session, Addis Ababa, Ethiopia.

Development Management Forum (DPMF) and Organisation for Social Science Research in Eastern and Southern Africa (OSSREA). 2000. Proceedings of the conference on African conflicts: Their management, resolution and post-conflict reconstruction, Preface. Addis Ababa, Ethiopia.

Draft protocol relating to the statute, composition, and functions of the Court of Justice of the African Union (African Court Draft Protocol). 2003. Addis Ababa, Ethiopia: African Union.

Heyns, Christof (ed). 2004. Human rights law in Africa. Volume One-International Human Rights Law in Africa. Leiden/Boston: Martinus Nijhoff Publishers.

Organisation for African Unity (OAU). 1992. Resolving conflicts in Africa: Proposals for action. Press and Information Series (1).

Protocol of the Court of Justice of the African Union (African Court of Justice Protocol), adopted in Maputo, Mozambique, on 11, July 2003.

Protocol relating to the establishment of the Peace and Security Council of the African Union (Peace and Security Council Protocol). 2002. First Ordinary Session of the Assembly of the African Union. Durban, South Africa.

Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights (African Human Rights Court Protocol), entered into force on 25, January 2004.

Rugumamu, Severine M. 2001. Conflict management in Africa: Diagnosis and prescriptions. In Globalisation, democracy, and development in Africa: Challenges and prospects, edited by Taye Assefa, Severine M. Rugumamu, and Abdel Ghaffar M. Ahmed, pp. 3-37. Addis Ababa: Organisation for Social Science Research in Eastern and Southern Africa.

United Nations Charter. 1945. San Francisco, USA.

Walraven, Klaas Van. 1996. Dreams of power: The role of the Organisation of African Unity in the politics of Africa (1963-1993). Ridderprint, Ridderkerk.

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