A.Powers and Functions of the Assembly

As regards to the powers and functions of the Assembly, Article 9 of the Constitutive Act of the African Union lists down the mandates that the Assembly has by virtue of the agreements of the member states as expressed in the Constitutive Act, which is a manifestation of their common volition.

Article 9

Powers and Functions of the Assembly

1.The functions of the Assembly shall be to:

1. a.determine the common policies of the Union;
2. b.receive, consider and take decisions on reports and recommendations from other organs of the Union;
3. c.consider requests for membership to the Union;
4. d.establish any organ of the Union;
5. e.monitorimplementation  of policies and decisions of the of the Union as well ensure compliance by all member states;
6. f.Adopt the budget of the Union;
7. g.give directives to the Executive Council onmanagement of conflicts, war and other emergency situations and the restoration of peace;
8. h.Appoint and terminate the appointment of judges of the Court of Justice;
9. i.Appoint the Chairman of the Commission and his or her deputy or deputies and Commissioners of the Commission and determine their functions and terms of office.
   1. 2.The Assembly may delegate any of its powers and functions to any organ of the Union.

Being the supreme organ of the Union, the Assembly has a final say over important matters mentioned above. It has a multifaceted character mandates. It could be said that most of them display the supreme character of the Assembly. The Assembly of the Union may be equated to the General Assembly of the United Nations. It has the ultimate power in determining the destiny of the organization itself.

As a high ranking organ of the Union, the Assembly’s powers and functions are the manifestations of the fact that the Union is a forum of cooperation among between African states that is to be guided by the common understanding of the Heads of States and Governments of its member states. The destiny of the organization is to be determined by the decisions that the Assembly makes.  The powers and functions it has; may, though obliquely, be equated to the mandates of the legislative organ in a domestic set up.

It has to be recalled that the Assembly is not a grouping of experts that could be indulged in specific operational matters of the Union. Rather, it sets the boundary of the Union’s functioning and authorizes those who have professional expertise in the area. It is for this reason that the Executive Council is answerable to the Assembly. The Executive Council supervises the functioning of the Specialized Technical Committees, and accordingly monitors the policy guidelines adopted by the Assembly.

It may be said that most of the functions of the Assembly are self-explanatory. To exemplify one of its power and functions, the Assembly is mandated to establish any organ of the Union. It is a bare fact that Article 5(1) of the Constitutive Act of the Union has already listed down organs of the Union. However, the framers of the Act cannot foresee the future in its full-fledged manner and determine an exhaustive and all-embracing list of organs that can remain forever. The order of the day may demand the abolition of one organ and the creation of another. In connection with this, the Trusteeship Council of the United Nations might be taken as an appropriate example. The mandates of this Council may be said to be outdated by now. That is why there are scholarly recommendations to establish a council on terrorism in this place.

The framers of the African Union Constitutive Act were capable of paying due attention to the aforementioned scenario. That is way Article 5(2) of the Act provides on open-ended statement. The organs of the Union, as listed in Article 5(1), are not exhaustive. If it deems necessary, the Assembly may decide to establish other organs of the Union. In the same fashion, Article 9(1) names the power to establish any organ of the Union as one of the functions of the Assembly. An appropriate example in this regard would be the decision of the Assembly to establish the Peace and Security Council of the African Union. This organ was not part of the organs of the Union as stipulated in the Constitutive Act. However, the order of the day and the emerging consensus among African states demanded its creation.  Hence, the Assembly heralds the creation of the Peace and Security Council as an independent organ of the African Union.

The mandates of the Assembly to establish a new organ of the Union is specified in black and white manner. At this juncture, let’s pose a question whether the Assembly can disestablish any of the organs of the Union as enumerated in the Constitutive Act. A contrary reading of Article 9(1) (d) might bring an affirmative response to the issue at hand. If the Assembly is mandated to create a new organ, what can propel it from abolishing an existing one? However, for practical reasons, it doesn’t seem realistic for the Assembly to do so. It may rather substitute an existing organ with another only in so far as it can further the objectives of the Union in a simplified manner. A notable example in this regard would be the Assembly’s decision to merge the Court of Justice of the African Union [which is an organ of the African Union as per the Constitutive Act] with the African Court of Human and Peoples’ Rights and create a new organ of the Union named the African Court of Justice and Human Rights. Generally, it may be concluded that, as an ultimate decision making organ of the Union, the Assembly may do so when it deems necessary. However, most organs of the African Union look like to have an indispensable character for the Union to pursue its objectives. Therefore, one may not reasonably expect a total abolition of any of the specified organs. Rather, it would be reasonable to expect a measure of reorganization when the circumstances of the case demand it.     

1. B.The Mode of Operation of the

Concerning the decision making process within the Assembly of the Union, the Constitutive Act authorizes the Assembly to adopt its own detailed Rules of Procedure. Accordingly, the Assembly has adopted its own Rules of Procedure as of July, 2002. A detailed explanation of the contents of the same might be a verbose attempt as most of the provisions of the Rules of Procedure are either reiteration of what has been provided in the Constitutive Act or too detail and routine to be discussed separately. Therefore this material focused on highlighting the major tenets of the said instrument. Students are hereby required to make personal readings of the instrument to have a full-fledged understanding of it.

The Assembly shall conduct its session at least once in a year on an ordinary basis. It may also conduct an extraordinary session provided that a member state or the Chairperson of the Union requested so and the request is approved by a two-third majority of the member states. Unless a member state requests to host the sessions of the Assembly, it shall be held at the headquarters of the Union, Addis Ababa, Ethiopia. But in any case, the Assembly is bound to make a session in Addis Ababa at least every other year.

A state that pledges to host the meetings of the Assembly shall be duty bound to bear all extra-expenses incurred by the Commission due to the change of Venue.  Apart from that, the said state shall comply with adequate logistical facilities and a favorable political atmosphere. In cases where two or more member states offer to host a session, the Assembly shall decide on the venue by simple majority. In any meeting of the Assembly, two-thirds of the total membership of the Union shall constitute a forum.

Rule 8 of the Rules of Procedure of the Assembly provides the following with regard to how agenda of Ordinary Sessions of the Assembly are going to be singled out:

1. 1.The Assembly shall adopt its Agenda at the opening of each session.
2. 2.The Provisional Agenda of an ordinary session shall be drawn by the Executive Council and shall comprise the following:
3. a.Items which the Assembly decides to place on its agenda;
4. b.Itemsby Executive Council;
5. c.Items proposed by the other organs of the Union that do not report directly to the Executive Council;
6. d.Items proposed by a Member State Provided that the proposal issixty (60) days before the opening of the session and the supporting document(s) and draft decision(s) has been communicated to the Chairperson of the Commission at least thirty (30) days before the opening of meeting.
7. 3.The provisional Agenda shall be divided into two parts as follows:

Part A: Items for adoption without discussion are those on which the Executive Council has reached agreement and for which their approval by the Assembly is possible without discussion;

Part B: Items for discussion are those on which agreement has not been reached by the Executive Council, requiring debate before approval by the Assembly.

It is as well possible for a Member State to raise other agenda items, which shall only be for information but not subject to debate or decision. As regards to the agenda of extra ordinary sessions, it shall comprise only the item(s) submitted for consideration an the request for convening the session

Concerning the manner of conducing the sessions, unless the Assembly decides other wise by simple majority, all sessions of the Assembly shall be closed. Arabic, English, French, Portuguese, Spanish, Kiswahili and any other African language shall be the working languages of the Assembly.

With respect to the decision making process of the Assembly, Rules 18-35 of its Rules of Procedure govern the details. Not all member states of the Assembly may always have a voting right on the decisions of the Assembly. A member state may be sanctioned not to exercise its voting rights as per Article 23(1) of the Constitutive Act due to its failure to make the appropriate payment of its contribution to the budget of the Union. A state may as well be suspended due to an unconstitutional change of government. Except in the cases of these exceptional circumstances, each member state shall have one (1) vote.

Under normal circumstances, the Assembly is expected to take its decisions by consensus. In cases where unanimity is not possible, the Assembly shall take questions of procedure by a simple majority and other decisions by a two-thirds majority of the member states eligible to vote. Sometimes it may be debatable as to whether a certain question is a question of procedure or not. In such cases, the Assembly shall decide on it by a simple majority. While voting on procedural matters, states may follow any method as may be determined by the Assembly whereas on substantive issues voting shall be made by secret ballot. 

While deliberating on issues of discussion, a member state may raise a point of order over which the Chairperson shall immediately decide. While raising a point of order, no one can speak on the substance of the issue being discussed. If the member state that raised the point of order is aggrieved by the decision of the Chairperson, the Assembly shall decide on the matter by a simple majority.

The Assembly may take its decisions in three different forms. The first form of decision is that of Regulations which are meant to be applicable and binding on member states, organs of the Union and the Regional Economic Communities. These entities are under obligation to take all the necessary measures to implement the Assembly’s Regulations.

Another form which the decision of the Assembly may take is Directives. Similar to that of Regulations, the Directives of the Assembly are binding on the three different categories of entities mentioned above.   What makes them distinct from Regulations is that they give discretionary power for national authorities so as to determine the form and the means used for the implementation of the same depending on their peculiar surroundings.

Recommendations, declarations, resolutions, and opinions, etc are another category of the forms of the decisions of the Assembly. These kinds of decisions are not binding. They are basically targeted at guiding and harmonizing the viewpoints of the member states.

Whatever forms a decision of the Assembly may take; it will be authenticated by the signature of the Chairperson of the Assembly and the Chairperson of the Commission. Next to that, they have to be published in all the working languages of the Union in the ‘Official Journal of the African Union’ within fifteen days after the signature and shall be transmitted to member states, other organs of the Union and the Regional Economic Communities. Unless the decision of the Assembly ordains otherwise, Regulations and Directives shall be automatically enforceable with in thirty (30) days after the date of the publication in the Official Journal of the African Union.

The Assembly is mandated to sanction a member state that fails, without good and reasonable cause, to comply with the binding decisions and policies of the Union. In such instances, the Assembly shall stipulate the timeframe for compliance with the decision. Should a state fail to observe the stipulated timeframes, the Assembly may impose sanctions in accordance with Article 23(2) of the Constitutive Act of the African Union. The sanctions to be imposed may include denial of transportation and communication links with other member states and other measures of political and economic nature to be determined by the Assembly.

Condemnation and rejection of unconstitutional changes of governments is one of the sixteen cardinal principles of the African Union. In pursuance of this principle, Article 30 of the Constitute Act provides that governments which shall come to power via unconstitutional means shall be suspended from participating in the activities of the Union.

Condemnation of unconstitutional change of government by the Union is a decision of paramount importance in Africa where such things are not uncommon. The procedure to be followed in such instances is stipulated in Rule 37 of the Rules of Procedure of the Assembly. The rule contains six procedures to be followed in order to impose sanctions for the said cases. Below is the text of Rule 37:

Rule 37

Sanction for Unconstitutional Changes of Government

1. 1.Pursuant to Article 30 of the Constitutive Act, the member states in which Governments accede to power by unconstitutional means shall be suspended and shall not participate in the activities of the Union.
2. 2.in conformity with the Declaration on the Framework for an OAU ResponseUnconstitutional Changes of Government, the situations to be considered as unconstitutional change shall be, among others:
3. a.Military and other coup d’against a democratically elected government;
4. b.Intervention by mercenaries to replace a democratically elected government;
5. c.Replacement of democratically elected governments by armed dissident groups and rebel movements; and
6. d.Refusal by an incumbent government to relinquish power to the winning party after a free and fair election.a.immediately, on behalf of the Union, condemn such a change and urge the speedy return to constitutional order;
   1. 3.The overthrow and replacement of a democratically elected government by elements assisted by mercenaries shall also be considered as an unconstitutional change of government.
   2. 4.whenever an unconstitutional change oftakes place, the Chairperson of the Assembly and the Chairperson of the Commission shall;
7.  
8. b.Convey a clear and unequivocal warning that such an illegal change shall not be tolerated or recognized by the Union.
9. c.Ensure consistency of action at the bilateral, interstate, sub-regional and international levels;
10. d.Request the PSC (Peace and Security Council of the African Union) to convene in order to discuss the matter;
11. e.Immediately suspend the member state from the Union and from participating in the organs of the Union, provided that exclusion from participating in the organs of the Union shall not affect the state’s membership of the Union and its obligations towards the Union.a.Visa denials for the perpetrators of the unconstitutional change;
    1. 5.The Assembly shall immediately apply sanctions against the regime that refuses to restore constitutional order, including but not limited to:
12.  
13. b.Restriction of government to government contacts;
14. c.Trade restrictions;
15. d.The sanctions provided for in Article 23(2) of the Constitutive Act and in these Rules;
16. e.Any additional sanction as may be recommended by the PSC (Peace and Security Council).

The Chairperson of the Commission in consultation with the Chairperson of the Assembly shall;

2. The Executive Council

A. Its Composition and Functions 

The Executive Council, responsible to the Assembly, is composed of Ministers of Foreign Affairs who meet twice a year in ordinary session. Member states may designate other ministers or authorities in place of the ministers of the foreign affairs. 

The Executive Council is established with a broad mandate. That states. ‘It has the mandate to coordinate and take decisions on policies in areas of common interest to the member states, and to consider issues referred to it by the Assembly.’

Article 13 of the Constitutive Act provides a list of functions of the Executive Council in the following manner:

Article 13

Functions of the Executive Council

1. 1.The Executive Council shall coordinate and take decisions on polices in areas of common interest to the member states, including the following:
2. a.Foreign trade;
3. b.Energy, industry and mineral resources;
4. c.Food, agricultural and animal resources, livestock production and forestry;
5. d.Water resources and irrigation;
6. e.Environmental protection, humanitarian action and disaster response and relief;
7. f.Transport and communications;
8. g.Insurance;
9. h.Education, culture, health and human resources development;
10. i.Science and technology;
11. j.Nationality, residency and immigration matters;
12. k.Social security, including the formulation of mother and child care policies, as well as policies relating to the disabled and the handicapped;
13. l.Establishment of a system of African awards, medals and prizes.
    1. 2.The Executive Council shall be responsible to the Assembly. It shall consider issues referred to it and monitor the implementation of policies formulated by the Assembly.
    2. 3.The Executive Council may delegate any of its powers and functions mentioned in paragraph 1 of this Article to the Specialized Technical Committees established under Article 14 of this Act.

As it can be deduced from a simple reading of the long list of functions the Executive Council of the African Union is a vital organ of the Union. Like the case of the Assembly of the Union, the Executive Council is a collection of political authorities of a given state. Though these personalities may have the political determination in furtherance of the above stated functions, they may lack expertise in fields of focus specified in Articles 13(1) of the Constitutive Act which is the rationale to authorize the Council to designate any of its functions to the Specialized Technical Committees who are composed of individuals with a comparatively better expertise in the fields.

B. The Mode of Operation of the Executive Council

As it has been mandated by Article 12 of the Constitutive Act, the Executive Council has already adopted its Rules of Procedure, which comprise a total of forty-three (43) Rules. In a similar fashion with that of the Assembly, the Rules of Procedure of the Executive Council are too detail and in some cases a reiteration of the provisions of the Constitutive Act. Therefore, this material provides only a general description of the modus operandi of the Executive Council. In many instances such as venue, the required forum, methods of voting, categorization of decisions in to three forms, voting rights, majority required in decision making procedures and the elite, the Rules of Procedure of the Executive Council are exactly the same as that of the Assembly. Therefore, it would not be wise to deal with such matters again.

Like that of the Assembly, the Executive Council has both ordinary and extraordinary sessions. Unless the contrary is specified by the Commission in, consultation with the Chairperson and member states, the Council shall conduct its ordinary sessions twice a year in February and July. For an extraordinary session to be held, a request by the Chairperson of the Executive Council or any member state or the Chairperson of the Commission in consultation with the Chairperson of the Assembly has to be approved by a two-thirds majority of the member states.

Concerning the procedure of adopting agenda of ordinary sessions of the Executive Council, Rule 9 states the following:

Rule 9

Agenda of Ordinary Sessions

1. 1.The Executive Council shall adopt its agenda at the opening of each session.
2. 2.The provisional agenda of an ordinary session shall be drawn up by the PRC (Permanent Representatives’ Committee). The Chairperson of the Commission shall communicate it to member states at least thirty (30) days before the opening of the session. The agenda may comprise the following:
3. a.The Report of the commission;
4. b.The report of the PRC;
5. c.Items which the Assembly has referred to the Executive Council;
6. d.Items which the Executive Council decided at a preceding session to place on its agenda;
7. e.The draft program and Budget of the Union;
8. f.Items proposed by other organs of the Union;
9. g.Items proposed by a member state provided that the proposal is submitted sixty (60) days before the opening of the session and the supporting document(s) and draft decision(s) have been communicated to the Chairperson of the Commission at least thirty (30) days before the opening of the session;
10. h.Any other business which shall be for information purposes only and shall not be subject to debate or decision.
    1. 3.The provisional agendabe divided into two parts as follows;

Part A: Items for adoption without discussions are those on which the PRC has reached agreement and for which approval by the Executive Council is possible without discussion.

Part B: Items for discussion are those on which agreement has not been reached by the PRC, requiring debate before approval by the Executive Council.

In extraordinary sessions, the agenda shall comprise only the item(s) submitted for consideration in the request for convening the session. The rationale for such an endorsement can speak for itself. It is intended to let delegates of the member sates not to be confronted with an issue which they have not prepared themselves.

3. The Commission

The Commission is the Secretariat of the African Union, and as such, has numerous functions. The Statute of the Commission of the African Union enumerates a list of functions that the Commission is mandated for. These include representing the African Union and defending its interests, implementing decisions taken by other organs of the African Union, promoting integration and socio-economic development, ensuring the promotion of peace, democracy, security and stability, and ensuring the mainstreaming of gender in all programs and activities of the African Union.

The Commission is composed of a Chairperson, a Deputy Chairperson, and the eight Commissioners. The Chairperson and the eight Commissioners, act as international officials responsible only to the Union as specified in Article 4(1) of the Statute of the Commission of the African Union. The eight Commissioners are elected to be responsible for a particular portfolio. The portfolios are peace and security, political affairs, infrastructure and energy, social affairs, human resources, science and technology, trade and industry, rural economy and agriculture, and economic Affairs. 

In general, the Commission of the African Union, as indicated in Article 20 of the Constitutive Act, is a standing organ of the African Union that runs the organization’s day-to-day business.

4. The Pan African Parliament

The Pan-African Parliament is one of the organs of the African Union as envisaged in Article 5(1) (c) of the Constitutive Act. The Pan-African Parliament was formally inaugurated in 2004. The notion of having it was, however, first outlined in the 1991 Abuja Treaty Establishing African Economic Community. The Treaty envisaged the Pan African Parliament as one of its organs and left the details for a protocol relating thereto which was signed in 2002.

The Pan-African Parliament was meant to provide a vehicle through which African citizens can contribute towards deliberating and providing advice on how to deepen democratic governance and promote development. Article 2 of the protocol in relation to the Pan African Parliament provides the following:

Article 2

Establishment of the Pan-African Parliament

1. 1.Member states hereby establish a Pan-African Parliament the composition, functions, powers and organization of which shall be governed by the present protocol.
2. 2.The Pan-African parliamentarians shall represent all the peoples of Africa.
3. 3.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 sates decide otherwise by an amendment to this protocol:
4. i.The Pan-African Parliament shall have consultative and advisory powers only; and
5. ii.The members of the Pan-African Parliament shall be appointed as provided for in Article 4 of this protocol.

As stated above, the Pan-African Parliament has not yet assumed full legislative powers. The parliament is expected to become more effective after 2010 when it was expected to become an elected body and assumed full legislative powers.

The Pan-African Parliament is mandated to exercise oversight on issues of governance and development on the continent. It can discuss or express an opinion on any matter, either on its own initiative or at the request of the African Union Assembly. It can also make recommendations on how to achieve the objectives of the African Union and strives to contribute to the coordination and harmonization of policies, programs and activities of the Regional Economic Communities and African’s national parliaments.

As regards to its composition, the Pan-African Parliament shall be composed of parliamentarians of member states. Each member state shall be represented in the Pan- African Parliament by five members, of whom, at least, one must be a woman. As the protocol stands now, the Pan-African parliamentarians shall be elected or designated by the respective National Parliaments or any other deliberative organs of the member states from among their members. The term of office of an individual parliamentarian depends on his/her term of office in the national parliament or other deliberative organ to which he/she is a member.

5. The Court of Justice

As per Articles 5(1) and 18 of the Constitutive Act, the Court of Justice of the African Union was established as a principal judicial organ of the Union. However, thereafter, the Assembly of the Union passed a decision urging the merger of the Court of Justice with the African Court on Human and Peoples’ Rights. The many area of focus of material is not on the African Court on Human and Peoples’ Rights. Nevertheless, the merger of the two judicial organs would have to be addressed here as the destiny of the Court of Justice is going to be shaped accordingly. For a proper and logical understanding of the issue under consideration, we first have to a look at the primarily intended structure of the Court of Justice of the African Union. Then we explain the decision to merge the two judicial bodies along with the rationale behind such endorsement. Finally, we look at the proposed modus operandi of the merged court.

A. Salient Features of the Court of Justice

The Court of Justice was, as stated above, set up as the principal judicial organ of the African Union. Thus, it could be said that it was meant to be a body that could offer judicial assistance for the functioning of the Union as part of international institutional law. It was with this objective in view that the protocol to the Court of Justice of the African Union was framed.

Article 18 of the said protocol listed entities that deemed to be eligible to submit cases to the Court. The entities enumerated were States parties to the protocol, the Assembly of the African Union, the Parliament and other organs of the Union authorized by the Assembly, the African Union Commission or a member of staff of the Commission in a dispute between them within the limits and under the conditions laid down in the Staff Rules and Regulations of the Union, and in accordance with conditions to be determined by the Assembly and provided that state party concerned is consented to the application made by the third party.

As a judicial organ of the African Union, the Court of Justice was meant to have jurisdiction over the following matters as stipulated in Article 19 of the protocol relating thereto. The jurisdictions of the Court shall include the interpretation, application or validity of Union treaties and all subsidiary legal instruments adopted within the framework of the Union, any question of international law, all acts, decisions, regulations and directives of the organs of the Union, all matters specifically provided for in any other agreements that states parties may conclude among themselves or with the Union and which confer jurisdiction on the Court, the existence of any fact which, if established, would constitute a breach of an international obligation owed to a state party to the Union and finally the nature or extent of the reparation to be made for the breach of an obligation.

B. The Decision to Merge the African Court on Human and Peoples’ Rights and the Court of Justice

The African Court on Human and Peoples’ Rights predates the Court of Justice in its establishment. But it is usually alleged that even from the outset of the drafting of the protocol establishing the African Court on Human and Peoples’ Rights, there was some debate about the possibility of amalgamating it with the Court of Justice into a single institution. In the second ordinary session of the African Union, which was held in Maputo, Mozambique, in July, 2003, the African Union decided to merge the two through the adoption of an instrument fusing both courts i.e. the draft merger instrument. At the request of the African Union, Algeria’s Foreign Minister and former president of the World Court in Hague, Mohammed Bedjaoui, prepared a draft merger Treaty in November 2005.

The following are among the reasons put forward to justify the merger of the two courts. The official explanation for such a merger was that it would be financially expedient to do so. Instead of having two courts with different budgets; it was opted for a single court. Another argument for an amalgamated court was the apparent competence of both courts to adjudicate human rights mattes. This led to the creation of a new merged court named the African Court of Justice and Human Rights. 

The preamble of the Statute of the African Court of Justice of Human Rights provides the following as one among the statement of reasons mentioned in it. It was stated that “[we are] firmly convinced that the establishment of the African Court of Justice and Human Rights shall assist in the achievement of the goals pursued by the African Union and that the attainment of the objectives of the African Charter on Human and Peoples’ Rights requires the establishment of a judicial organ to supplement and strengthen the mission of the African Commission on Human Peoples’ Rights as well as the African Committee of Experts on the Rights and Welfare of the Child.

C. The Proposed Mode of Operation of the Merged Court

The modus operandi of the merged court might be highlighted by focusing on four principal centers of attention:

• Sections of the Court

The Court shall have two sections. The first section is the General Affairs Section, which has eight judges and is competent to hear all cases which were the jurisdiction of the former Court of Justice for Human and Peoples’ Rights issues, which shall be handled by the second section of the court named as the Human Rights Section.

Though the Court has two sections with their own mandate, any section may refer a case to be considered by the full court whenever it is convinced that it is necessary to do so. It may be said that this kind of proposal is likely to occur in some grey areas, which are not easy to determine whether they are human rights issues, or not and in cases where in the mandates of the General Affairs Section might commingle with human rights issues.

• Required Quorum

A quorum of nine and five judges shall respectively be required for deliberations of the full court and for deliberations of each section.

• Jurisdiction of the Court

The court shall have jurisdiction over the previous jurisdictions of the two Courts before their merger. The jurisdiction of the former Court of Justice is already stated in 3.5.1 of this material. As regards to, the African Court of Human and Peoples’ Rights, the protocol for its establishment extends its jurisdiction to all cases and disputes concerning the interpretation and application of the Charter (ACHPR) and any other relevant human right instrument ratified by the states concerned. It was also meant to have an advisory jurisdiction to any recognized African organization. In the same fashion, the merged court may as well have advisory jurisdiction on any legal question to organs of the Union.

• Entities Eligible to Submit Cases to the Court

Under the proposed merged court, locus stand has been broadened to include individuals and relevant human rights organizations accredited to the African Union or any of its organs. Accordingly, the old requirement of an additional declaration to allow individual and NGO petitions has been dispensed with, and the majority of the victims can approach the Court directly. This modification was cited in Chapter two, of this material, as a feature that shows African Union’s trend to adopt some supranational characters as an international organization.

6. The Permanent Representatives’ Committees

The Permanent Representatives’ Committee is an organ that is composed of permanent representatives accredited to the Union and other duly accredited Plenipotentiaries of member states. A member state shall be represented in the Permanent Representatives’ Committee by a permanent representative who is a resident in the specified place, may designate another country from its region to represent it.

The Permanent Representatives’ Committee shall be mandated to multifaceted tasks of which most of them are subservient to the functions of the Executive Council. Rule 4 of the Rules of Procedure of the Permanent Representatives’ Committee lists down the powers and functions of the Committee.

Rule 4

Powers and Functions

1. The Permanent Representatives’ Committee shall inter-alia:

a. Act as an advisory body to the Executive Council;

b. Prepare the meetings of the Executive Council, including the Executive Council;

c. Prepare the meetings of the Executive Council, including the agenda and draft     decisions;

d. Make recommendations on areas of common interest to member states particularly on issues on the agenda of the Executive Council;

e. Facilitate communication between the Commission and the Capitals of member states;

f. Consider the program and Budget of the Union as well as administrative, budgetary and financial matters of the Commission and make recommendations to the Executive Council;

g. Consider the financial report of the Commission and make recommendations to the Executive Council;

h. Consider the report of the Board of External Auditors and submit written comments to the Executive Council;

i. Monitor the implementation of the budget of the Union;

j. Propose the composition of the Bureaus of the organs of the Union ad-hoc committees, and sub-committees;

k. Consider matters relating to the programs and projects of the Union particularly issues relating to the socio-economic development and integration of the continent and make recommendations thereon to the Executive Council.

l. Monitor the implementation of the policies, decisions and agreements adopted by the Executive Council,

m. Participate in the preparation of the program of Activities of the Union;

n. Participate in the preparations of the calendar of the meetings of the Union;

o. Consider any matter assigned to it by the Executive Council;

p. carries out any other functions that may be assigned to it by the Executive Council.

2. The Permanent Representatives’ Committee may set up such ad-hoc committees and temporary working groups, as it deems necessary, including a sub-committee on Headquarters and Host Agreement, NEPAD and the Cairo Plan of Action of the Africa/Europe Summit.

The above list of the power and functions of the Permanent Representatives’ Committee can speak for itself and there seem no need to make elaborate them. As regards to its mode of operation, the Committee’s Rules of Procedure provide with a very similar, if not completely identical, rules with that of the Executive Council. The notable difference between the two is a difference in terminologies owing to the different names that the two organs of the Union have. Therefore, the material will not dare to make a verbose attempt to go to the details of the Rules of Procedure of the Permanent Representatives’ Committee.

7. The Specialized Technical Committees

It was stated above that the Executive Council of the African Union is mandated to coordinate and take decisions on policies in areas of common interest to the member states. These areas of common interest are of multifaceted character. The Executive Council is, however, not a body that comprises with experts in the fields to which it is mandated. This establishes a prima-facie case to suggest on the indispensable organ, composed of experts that can assist the Executive Council in pursuing its agenda.

It was mainly due to the above stated rationale that Article 14 of the Constitutive Act of the African Union legally established the Specialized Technical Committees as an organ of the African Union. As justified by its rationale, the Specialized Technical committees were made responsible to the Executive Council of the African Union. The constitutive Act established seven Specialized Technical committees. These are:

1. i.The Committee on Rural Economy and Agricultural Matters;

ii.The Committee on Monetary and Financial Affairs;

1. iii.The Committee on Trade, Customs and Immigration Matters;
2. iv.The Committee on Industry, Science and Technology, Energy, Natural Resources and Environment;

v. The Committee on Transport, Communications and Tourism;

1. vi.The Committee on Health, Labor and Social Affairs; and
2. vii.The Committee on Education, Culture and Human Resources.

The above mentioned committees shall be composed of delegates who have the responsibility to sectors falling within their respective areas of competence. The Assembly of the African Union is mandated to restructure the seven committees or to establish other specialized committees, as it deems necessary.

Article 15 of the Constitutive Act provides the functions of the seven specialized technical committees. The functions are put in such a generic form that they do not specifically refer to any of the committees on a specified basis. Rather, it provides a guideline of what each Specialized Technical Committees shall focus on.   

8. The Economic, Social and Cultural Council  

The Economic, Social and Cultural Council (ECOSOCC) of the African Union was established under Article 22 of the Constitutive Act of the African Union as a vehicle for building a strong partnership between governments and all segments of the African civil society.

The Statue of the ECOSOCC, adopted by the Heads of State and Government at the third Ordinary Session of the Assembly in 2004 defines it as an advisory organ of the African Union composed of different African social groups, professional groups, non-governmental organizations, and cultural organizations. ECOSOCC’s structure includes a General Assembly, a Standing Committee, Sectoral Cluster Communities and a Credentials Committee.

The following are the major functions to which the ECOSOCC is mandated to:

-      promoting dialogue between all segments of African people on issues concerning the continent and its future;

-      Forging strong partnerships between governments and all segments of civil society, in particular, women, the youth, children, the Diaspora, organized labor, the private sector and professional groups;

-      Promoting the participation of African Civil Society is the implementation of the policies and programs of the Union;

-      Supporting policies and programs that promote peace, security and stability and foster constant development and integration; 

-      Promoting and defending a culture of good governance, democratic principles and institutions, popular participation, human rights  and social justice;

-      Promoting, advocating and defending gender equality; and

-      Promoting and strengthening the institutional, human and operational capacities of the African civil society.

9. The Peace and Security Council

A. Background

Establishment of a common defense policy for the African continent is one of the sixteen cardinal principles of the African Union. While explaining the historical roots of the Peace and Security Council, Timothy stated that the founders of the African Union deliberately endowed it with more interventionist power than the OAU which was criticized as having been a toothless talking shop where a club of presidents and prime ministers informally embraced a policy of non-intervention in the internal affairs of their member states. The misdeeds of the past have to take the blame for the untold miseries of the Africans in different parts of the continent including Rwanda, Sierra Leone, Democratic Republic Congo and the Sudan. Africa can be expected to have a bright future only in so far as there exist a scheme whereby the members of the African Union can function as, to use Thabo Mbeki’s words, their brothers’ keeper. This can be realized with a Peace and Security Council of the African Union.

Despite all the above pressing demands for the need to have a Peace and Security Council of the African Union, the Constitutive Act of the Union did not mention it as one of the principal organs of the African Union. The Constitute Act was, however, open enough to let the Assembly establish any other organ of the union which it deems necessary.

Accordingly, the African Union established its Peace and Security Council on 26 December 2003 when the protocol relating to the Council was entered into force. This was a remarkable step taken by the Union so as to act according to its principles of establishment of a common defense policy for the African continent. This step could demonstrate African Union’s commitment to good governance and its willingness to legally sanction any infractions against the legally established constitutional order of a member state and thereby give effect to the Constitutive Act. In a continent where numerous states are engaged in conflicts of varying degrees, the Peace and Security Council is undoubtedly of vital importance. Article 9 of the protocol on Amendments to the Constitutive Act of the African Union formally established the Council.

B. Objectives, Functions and Composition of the Peace and Security Council  

One might wonder as to what power does the Peace and Security Council of the African Union have mainly in light of similar and perhaps overlapping tasks that it has with the Security Council of the United Nations. The protocol relating to its establishment (herein after referred to as the Protocol) was framed taking this dilemma into account. It reaffirms its conviction to the Charter of the United Nations which conferred on its Security Council the responsibility of maintaining the international peace and security. It is based on the foundation of the powers of the Peace and Security Council on the United Nations Charter as it recognizes the role of regional arrangements in the maintenance of international peace and security. Therefore, the Peace and Security Council is meant to function in collaboration with the Security Council of the United Nations. It is as a manifestation of this commitment that the Protocol pledges to be guided by the principles enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights along with the Constitutive Act of the African Union.

The objectives of the Peace and Security Council are enumerated in Article 3 of the protocol. The notable objectives of the Council, inter alia, include promotion of peace, security and stability in Africa, anticipation and prevention of conflicts, assist the peace building and post conflict reconstruction activities, join African hands in the fight against terrorism and developing a common defense policy for the African Union.

The Council is expected to attain its objectives by performing tasks which vary from preventing the occurrence of conflicts in Africa to managing the conflicts which have already occurred. Article 7 of the Protocol specifies the specific powers that it has. For the purpose of a general understanding of the mandates of the Council, let’s have a look at what is provided in the Protocol itself as a list of functions meant to be performed by the Peace and Security Council.

Article 6

The Peace and Security Council shall perform functions in the following areas:

1. a.Promotion of peace, security and stability in Africa;
2. b.Early warning and preventive diplomacy;
3. c.Peace-making, including the use of good offices; mediation, conciliation and enquiry;
4. d.Peace support operations and intervention, pursuant to Article 4(h) and (j) of the Constitutive Act;
5. e.Peace-building and post-conflict reconstruction,
6. f.Humanitarian action and disaster management;
7. g.Any other function as may be decided by the Assembly.

The Peace and Security Council shall be composed of fifteen member states of which ten of them shall remain in-charge for a term of two years and five of them for a term of three years. The term of office of the latter category is extended by a year as compared to the former with a view to ensure continuity of tasks within the Council. Unlike the case in the Security Council of the United Nations, where the five permanent members have the so called veto power, all members of the Peace and Security Council shall have equal votes in decision making. On top of that, the Peace and Security Council is different from the Security Council of the United Nations in that no member has permanence in this position and it will be rotated among member states of the Union. The Chairmanship of the Peace and Security Council shall be held in turn by the members of the Council in the alphabetical order of their names and shall hold office for one calendar month. A set of criteria is listed down in Article 5(2) of the Protocol that would be used by the Assembly in electing the fifteen members of the Council. The Assembly is duty bound to apply the principle of equitable regional representation and rotation among member states of the Union. In addition to that, the Protocol listed down nine detailed criteria that the Assembly shall take into account in the process of electing member states. These nine criteria may be generalized so that the prospective member state shall have the adequate capacity and commitment to discharge the functions attributed to the Council.

C. The Mode of Operation of the Peace and Security Council

The Peace and Security Council is a standing decision-making organ for the prevention, management and resolution of conflicts in Africa. The Protocol vows to organize the Council so as to be able to function continuously. In pursuance of this pledge, each member state of the Council shall, at all times, be represented at Addis Ababa, the Headquarters of the Union. Thus the capacity of a member state to have a sufficiently staffed and equipped permanent mission at the Headquarters of the Union and the United Nations is used a criterion in electing member states to the Council. A state that can comply with such requirements is expected to be able to shoulder the responsibilities which go with the membership to the Council.  

The Peace and Security Council may establish subsidiary bodies which it believes to be appropriate for the proper accomplishment of its mandates. In particular, it may set up ad loc committees for mediation, conciliation, or enquiry, consisting of an individual state or group of states. It is also required to seek military, legal and other forms of expertise as it may be necessary in the circumstances of the case. The functions of the Council are highly intrusive in the sovereignty of a member state wherein the intervention is going to be made. This would obviously complicate the tasks that it has given the well-entrenched jealously and respect that most African states have towards their sovereignty. 

With regard to the Agenda to be seized by the Peace and Security Council, it shall provisionally be determined by the Chairperson of the Council based on proposals submitted by the Chairperson of the Commission and the member states. The Council has similar quorum requirements like most other organs of the African Union. The presence of two-thirds of the fifteen members should constitute a quorum.

Similar with that of the other organs of the African Union, the meetings of the Council shall be held in closed meetings. As an exception to this rule, the Council may decide to hold open meetings. There are three possibilities for the Council to make its meeting open to a non-party to the Council.

The first possibility is a case whereby a state that is not a party of the Council shall be invited to present its case and shall participate in the discussions of the Council, provided that it is the party to a conflict or a situation being considered by the latter. It is obvious that, the invited state will participate minus the right to vote on the matter. It has to be stressed that the right of the concerned states to participate does not depend on the mercy of the Council.

The second and third possibility is conducting an open meeting, in which a non party to the Council may get involved in discussions, depend on the decision of the Council. In the second possibility, member state of the African Union that considers that its interests will be affected by the outcome of the case, may be invited to participate in the discussions. The remaining possibility is a case whereby a Regional Mechanism, international organization or civil society organization which is involved in or has an interest in the matter under consideration may be invited to take part in the discussions. In both cases, the participating entities would naturally be devoid of the right to vote.

It is not unlikely for a member state of the Peace and Security Council to be a party to a conflict or a situation that is being examined. In such cases, the member state concerned shall be treated as though it were not a member of the Council. Accordingly, it shall only be involved in the discussion, but not in the decision making by casting votes. In all other cases, each member of the Council shall have one vote. In the absence of unanimity of votes, the Council shall adopt its decision on procedural matters by a simple majority and by a two-thirds majority on matters other than the procedural issues.

The agendas of the Council are so critical that due diligence and strict adherence to the principles of the Union is expected from each member. To exemplify this statement, let’s use two sensitive cases in which the Council may make decisions.

The Council has the power to recommend the Assembly is intervention, on behalf of the Union, if it is convinced that a member state of the Union is in a state of war crimes, genocide and crimes against humanity, as defined in relevant international conventions and instruments, of which the Rome Statue of the International Criminal Court is a notable one.

To take another example of its sensitive mandates, the Council is indebted to institute sanctions whenever an unconstitutional change of government is said to have occurred in any member state of the Union. This should have an impact on the ability of the African Union to protect the well being of vulnerable groups due to the resultant breakdown of law and order. However, if not managed properly, the decisions of the Council may in themselves be sources of bitter conflict between the Union and its member states. 

As it could be inferred from what has been stated hereinbefore, the Peace and Security Council has an important and sensitive mandate. To make it able to function properly and thereby facilitate timely and efficient responses to conflict and crisis situations in Africa, the Council shall be assisted by other entities. In particular, it shall be supported by the African Union Commission, a Panel of the Wise, a Continental Early Warning System, an African Standby Force and a Special Fund.

10. Financial Institutions 

The Constitutive Act of the African Union determines that the Union shall have three financial institutions. These are:

1. A.The African Central Bank;
2. B.The African Monetary Fund, and
3. C.The African Investment Bank.

The Constitutive Act does not state the rules and regulations of each of the above three financial institutions. It simply indicates that such matters shall be defined in protocols relating to each financial institution.

A. The African Monetary Fund

The African Monetary Fund is needed to advance monetary integration in Africa. The document that creates it underscores that the rationale behind its foundation is certainly not to create a financial institution that would duplicate the activities of the International Monetary Fund in Africa. It was rather suggested to have been motivated by the implementation of the Strategic Plan of the African Union that requires the existence of the institutions, including monetary ones, which would facilitate the integration of African economies, by eliminating of trade restrictions and promoting greater monetary integration.

The above cited document sates that many African experts support the idea of creating the African Monetary Fund, on the grounds that programs supported by the International Monetary Fund have not solved the balance of payments problems of the African countries in a lasting manner. They blame International Monetary Fund programs for relying on too much “adjustment” without the “financial resources” needed to promote growth and reduce poverty. In order to alleviate this problem, the African Monetary Fund, which will be a pool of  central bank reserves and national currencies of the member states of the African Union that are faced with balance of payment problems. It is also stated that African Monetary Fund will differ from the International Monetary Fund in its lending policies, as it will give priority to regional macroeconomic objectives.

The above stated document has details cornering the purposes, membership and resources of the fund, and the liquidation of the African Monetary Fund. Dealing with all these issues would be too detail in this course. However, it has to be stressed that the African Monetary Fund is temporal in character. That is why the document on its creation states that the African Monetary Fund will only be a precursor for the African Central Bank. It predicts that once the African Central Bank is established, it will take over some of the activities of the African Monetary Fund, including the management of international reserves and its lending operations.

An appropriate question in relation to this is the fate of the African Monetary Fund, after the establishment of the African Central Bank. It is expected that, from that moment onwards, the African Monetary Fund would be transformed into an agency that would be responsible for: the economic and financial surveillance and bank supervision, regulation, the audits of the central banks.

B. The African Central Bank

The African Central Bank is one of the three financial institutions established according to the provide Article 19 of the Constitutive Act of the Union. In fact, the document for the creation of the African Monetary Fund refers the establishment of the African Central Bank as the apex of monetary integration in Africa. However, as it has been stated above, the African Central Bank has been not established.

Towards the establishment of the African Central Bank, the African Union has already set up a steering committee to carry out preparatory works ahead of its establishment. Once the African Central Bank becomes operational, it is expected to take over the activities of the African Central Bank.

C. The African Investment Bank

The basic rationale behind the establishment of the African Investment Bank is to collectively address the main development challenges facing African countries today and thereby providing finance for regional integration and private sector investment projects in Africa.

The Agreement establishing the African Investment Bank mandated the Bank to foster economic growth and accelerate economic integration in Africa in line with the objectives of the African Union. This objective is expected to be achieved by the Bank upon carrying out five important tasks that Article 2 of the said agreement stipulates. These are:

   i. To promote investment activities of the public and private sector intended to advance regional integration of the member states of the African Union;  

  ii. To utilize available resources for the implementation of investment projects contributing to the strengthening of the private sector and the modernization of rural sector activities in low-income African countries;

iii. To mobilize resources from capital markets inside and outside Africa for the financing of investment project in African countries;

iv. To provide technical assistance as may be needed in African countries for the study, preparation, financing and execution of investment projects; and

V. To undertake other activities and services that may contribute to the fulfillment of its overall mandate.