chapter three: the constitutive Act: an instrument for the establishment of a united africa?
In its Preamble, the Constitutive Act acknowledges that African leaders have been inspired by the noble ideals of Pan-Africanism, which also guided the founding of the OAU and their determination to promote unity, solidarity, cohesion and cooperation among the peoples of Africa. In this regard, the Constitutive Act is an embodiment of the core values on which the OAU was founded. The Preamble to the Constitutive Act also pays due regard to the determined and invaluable role played by the OAU in the liberation of the continent, the affirmation of a common identity and the process of attainment of the unity of the continent, while providing a unique framework for collective action in Africa and in her relations with the rest of the world.
As a ‘constituting’ instrument, the Act combines the objectives of the OAU Charter and the Abuja Treaty with new ones. The key objectives of the Union under Article 3 of the Act are, inter alia, to achieve greater unity and solidarity among African countries and the peoples of Africa; defend the sovereignty, territorial integrity and independence of its Member States; accelerate the political and socio-economic integration of the continent; and, promote and defend African common positions on issues of interest to the continent and its peoples. The Act also provides for the encouragement of international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights, the promotion of peace, security, and stability on the continent, the establishment of necessary conditions that should enable the continent to play its rightful role in the global economy and in international negotiations, and the promotion of sustainable development at the economic, social and cultural levels as well as the integration of African economies. However, the Act leaves open the question as to how such integration is to be accelerated.
The present conceptual vision of unity under the Constitutive Act is a union of equal and sovereign States that are inter-dependent, respect their existing borders as inherited at independence and do not interfere in the internal affairs of each other, except when the Union makes a decision to intervene, or receives a request to do so.
Although Article 4 of the Constitutive Act lists the principles guiding the functioning of the Union, there are functional contradictions in the text of the Act. The Constitutive Act maintains the principles of sovereignty and respect for borders, which inherently place limitations on the extent to which political integration can be accelerated. But sovereignty can also be exercised to accelerate political integration when there is political will to do so. While the Act prohibits the use of force or threat to use force among Member States of the Union, it also upholds the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely, war crimes, genocide and crimes against humanity.
As an integrating treaty, the Act does not specify what steps need to be taken to accelerate the political and economic integration of Africa. Neither does it provide clear and sufficient guidance as to the powers and functions of the various Organs, Institutions and key players, nor the relations among them. Also, it does not contain an institutionalised mechanism for the promotion and management of Union affairs at national level. No provision is made in the Act for remedying or rectifying the prevailing and dominant inter-governmental tendencies carried over from the OAU, except by stating, in Article 33, that the Act shall replace the Charter of the OAU.
By contrast, the Abuja Treaty seeks to achieve economic integration based on equality and inter-dependence among African States. It would seem that the Abuja Treaty omitted reference to ‘sovereignty’ because this would have been a stumbling block to the establishment of an Economic Community. The Monrovia Declaration and the Lagos Plan of Action that preceded the Abuja Treaty only refer to equality and inter-dependence. The implication is that economic integration implies ceding of a degree of sovereignty for this purpose. It should be emphasised that the additional dimension of political integration makes the ceding of sovereignty inevitable.
The Abuja Treaty lays down the modality for attaining economic integration. Article 4(2) of the Treaty specifically requires that, in order to promote the attainment of the objectives of the Community as set out in its relevant provisions, the Community shall, by stages, ensure that certain things are done, including the strengthening of existing Regional Economic Communities, and the establishment of other communities, where they do not exist.
Contemporary Globalisation: Challenges and Opportunities for African Unity
As an integral part of the global order, Africa has not been exempt from the multi-layered process of change associated with contemporary globalisation. But much of the political and policy perceptions of globalisation in Africa have tended to relate to the challenges and opportunities posed by globalisation in negative terms, centring around the notion of “marginalisation” and exclusion. As the previous Chapter shows, the African continent should ensure that past mistakes that cost it dearly are not repeated. Appropriate steps should be taken to tap into available opportunities and to project Africa’s interests with a view to expand and extend the depth of unity, as well as the maximisation of the welfare of African peoples.
The totality of the changes being brought under the aegis of contemporary globalisation poses the challenge of ensuring that Africa’s own commitment to unity and efforts at integration are not torn asunder as they are pulled in different directions by competing external claims for collaboration and partnership with the Continent. The pressures for the atomisation of Africa within the ambit of contemporary globalisation are many and correspond with the interests of powerful forces exercising dominance in the global order. Africa must ensure that its response to the pressures is a coordinated one that promotes its unification rather than divides it. The AU should be the forum for such a coordinated response.
In addition to the distinction being made by Africa’s development partners between sub-Saharan Africa on the one hand and North Africa and the Middle East on the other, there is now an attempt by some leaders of the European Union to further divide Africa. This is magnified by the proposal to establish a new integration scheme, which will bring together countries on both sides of the Mediterranean. It should be noted, in this regard, that this development undermines the effectiveness of the Arab Maghreb Union, which is one of the weakest building blocks for the AEC.
If Africa is to take full advantage of the globalisation process, it should put more emphasis on strengthening the RECs as highlighted in Chapter Nine, and move towards the creation of an African Common Market and the establishment of the African Economic Community. In this regard the establishment of the Free Trade Areas between Europe and individual North African countries and South Africa as well as the projected Economic Partnership Agreements would not contribute to accelerating the regional and continental integration process.
As already indicated, the Constitutive Act is not a perfect instrument. To the extent that it allows Africa to move along the road to continental unity, economic integration and transformation, focus should initially be on areas where there is consensus and accordingly help to strengthen and extend unity. At the same time, efforts should be made to identify and confront specific weaknesses and overcome them.
There is need to identify those core values contained in Article 3 of the Constitutive Act (CA) which must be promoted, internalised and domesticated in all African countries and AU Organs. Can these be linked to the core values that guided the preparation of the LPA, FAL, African Charter for Human and Peoples Rights and the APRM? Similarly to what extent are the issues of immigration - immigration from Africa to Europe and internal migration- within Africa being addressed? The failure to do so has impacted negatively on the vision of pan-Africanism. While the vision of unity is popular with the people of Africa and the CSOs, the inter-governmental discourses have tended to focus on structures. Yet, structures derive from clarity of vision. Little wonder that there is a long road to tread with regard to the development of a pan-African consciousness.
The Panel is of the opinion that there is considerable potential for moving the integration process forward without tampering with the Constitutive Act. However, the reform and the strengthening and efficient functioning of the various Organs and Institutions of the AU are necessary preconditions. Unless they are dynamic, pro-active, efficient and effective, they will constitute the Achilles heel of political and economic integration.
The African Union must grasp the decisive role of Institutions in governance. As has been rightly and repeatedly acknowledged, institutions play a decisive role in the destiny of nations. However, they require good governance and leadership and peoples’ participation. Good governance depends on the qualities of the men and women that deal with governance. It is institutions that guarantee good governance. Without doubt, the destiny of the AU rests with its Organs and Institutions. Appropriate institutional framework and infrastructure are the bedrocks upon which development at all levels – local, national, regional and continental is built. When institutional capacity is very high and is untainted by corruption and arbitrariness, the rate of progress is accelerated. Furthermore, it is only by fully implementing decisions at all levels and by promptly ratifying, adhering to and implementing trans-continental treaties at national level that progress becomes sustainable. The findings of the Audit of the AU Organs and Institutions in the chapters that follow, therefore, provide the basis for putting the integration of Africa on a fast track. If all the recommendations which have emerged from this Audit are fully implemented, a culture for good governance will become well and truly internalised.