The Executive Council, which is responsible to the Assembly, is established as per Articles 10-13 of the Constitutive Act, and the details of its operations are spelt out in its Rules of Procedure. Whereas Article 10 of the Act provides that the Council shall be composed of the Ministers of Foreign Affairs or such other Ministers or Authorities as are designated by the Governments of Member States, in practice and in conformity with Rule 18(1), the Organ is composed of Ministers of Foreign Affairs.
Under Article 13, the Council is responsible for coordinating and taking decisions on policies in areas of common interest to the Member States, including: foreign trade; energy, industry and mineral resources; food, agriculture and animal resources, livestock production and forestry; water resources and irrigation; environmental protection, humanitarian action and disaster response and relief; transport and communications; insurance; education, culture, health and human resources development; science and technology; nationality, residency and immigration matters; social security, including the formulation of mother and child care policies, as well as policies relating to the disabled and the handicapped; and the establishment of a system of African awards, medals and prizes.
Execution of Statutory Functions and Audit Findings
It is not spelt out in both the Act and the Rules how Ministers of Foreign Affairs can collectively coordinate and take decisions on matters relating to portfolios, which at national level are the competencies of other ministries. However, Rule 5 of the Rules of Procedure gives the Executive Council the powers and functions that fall largely in the domain of Ministers of Foreign Affairs.
These powers and functions range from providing support to the Assembly, including monitoring of the implementation of the decisions, to making recommendations to the Assembly with respect to certain aspects of work of the Union (e.g. budget and conditions of service for employees) and categories of appointments (the eight Commissioners, members of the African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child).
The Council has met 15 times, (both in ordinary and extra-ordinary sessions) since its establishment and has taken 393 Decisions and adopted two Declarations (Refer to Table 4).
Table 4: Sessions of the African Union Executive Council
Total Decisions --------------- 393 Total Declarations------------ 2
Note: In this Table, the performance of the Executive Council can, therefore, be assessed on the basis of the following indicators: Assembly decisions implemented by Council; Council Decisions taken and their implementation, and Council delivery with respect to areas of responsibility, as spelt out in Article 13 of the Constitutive Act.
While the Assembly is the highest decision-making body of the African Union, the Council is also empowered to coordinate and take decisions on policies in areas of common interest to Member States which encompass practically all the issues that the Union is seized with. In effect, both the Assembly and the Executive Council appear to be co-decision making bodies. However, and in practice, the Assembly makes all principal decisions because the decisions of the Council are subject to its endorsement or approval before they can take effect. This is the case when the Council meets immediately before the sessions of the Assembly whereby the Council’s decisions are passed on to the Assembly for endorsement.
The Council as presently constituted, is an all-purpose body, which contrasts with the practice at national level. It is also not consistent with the Constitutive Act. Many of the issues that are brought up for discussion at the level of the Council require specialised competences which may not fall within the portfolios of Ministers Foreign Affairs. In order therefore to create the right kind of institutional framework for appropriate and knowledgeable decision-making process, the Council should also be composed sectorally. Accordingly, the Executive Council of Foreign Ministers should be renamed Council of Ministers. The Specialised Technical Committees will then become the sectoral Council of Ministers. The Council will continue to be under the oversight of the Assembly.
While the Constitutive Act provides that the Council shall be composed of Ministers of Foreign Affairs or such other Ministers or Authorities as are designated by the Governments of Member States, the practice in the African Union, as indicated already, does not clearly reflect this intention. It is, therefore, proposed that arrangements should be made to expand the composition of the Council to include other sectoral Ministers. For example, if the Ministers of Agriculture were to sit on an agricultural matter, or Ministers of Trade sat on trade related issues, such Ministerial sessions should also count as meetings of the Council of the Union. That will mean the Council will always be in session to consider different issues. Consequently, the provision that the Council meet at least twice a year in ordinary session needs to be reviewed. This is the best way that the Council will be able to effectively and efficiently handle all the myriad of subjects that the Union is seized with.
To summarise, some of the advantages of the proposed format include the following:
Most of the powers and functions given to Executive Council under Article 13 of the Act fall under the competence of different ministries at national level;
The sectoral conferences of ministers, which are now a common phenomenon in the AU, should be institutionalised and linked directly to the Assembly. Currently, these conferences of Ministers report to the Assembly through the Executive Council. There have been some instances when the Executive Council has attempted to modify the recommendations and decisions of such sectoral conferences without the mandate of the Ministers concerned;
The performance and delivery of the AU on its vision and mission, including the powers and functions of the Executive Council, as enumerated under Article 13, will be enhanced, as capacities at country level will be mobilized through this format. Currently, most of these sectoral Ministerial conferences meet on irregular, ad hoc and uncoordinated basis. In the proposed format, the sectoral Ministerial conferences will constitute the various fora of the Council of Ministers; and,
The proposed format will clarify the confusion between the current practice and the stipulation in Article14 (3) of the Constitutive Act regarding the STCs, which envisage sectoral Ministries.
The Panel recommends that:
The Executive Council should be redesignated as a Council of Ministers and its composition aligned to Articles 10(1) and 14 of the Constitutive Act. The Council of Ministers will consist of representatives of each Member State, at Ministerial level, who are authorised to take decisions on behalf of Member States; and,
Different Ministers, according to the agenda, will attend meetings of the Council of Ministers falling within their respective portfolios. In the proposed format, the Council of Ministers of Foreign Affairs will be one of the fora of the Council of Ministers. The brief for each Council will flow from the powers and functions of the Executive Council as stipulated in Rule 5 of the Rules of Procedure,thereby ensuring a more reflective handling of sectoral issues.