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Abstract
This article traces how the development of regional law is linked to the state of regional integration in Africa. Given the prominent role European Union law plays in the functioning of the European Union, the question is posed whether there is similar scope for the development of ‘African Union law’, a term not established hitherto. Initially devoid from the necessary supranational elements required to adopt law that would automatically bind member states, the African Union is leaning towards a functionalist approach paving the way for transfer of sovereign powers to African Union institutions. It is argued that law-making capacity, be it through the activities of the Pan-African Parliament, the Peace and Security Council or the African court system, is a necessary requirement to accelerate the process of regional integration. African Union law will hold member states accountable to comply with international and continentally agreed standards on, inter alia, democracy, good governance and human rights.
Acknowledgements
The author would like to thank Deon Geldenhuys for his advice and comments.
Notes on contributor
Michèle Olivier is a reader at the School of Politics, Philosophy and International Studies, University of Hull. She obtained the LLB and BA (Hons) (Political Science) degrees from the University of Pretoria in 1986 and was subsequently admitted as an attorney in South Africa in 1989. In the same year she obtained an MA degree in Political Studies on the relativity of human rights in African states, from the Rand Afrikaans University. An LLM degree in Public International Law was conferred on her in 1991 by the University of Pretoria. In 1995 she was promoted to the position of Principal State Law Adviser in the Department of Foreign Affairs, where she represented the South African government in the negotiating of treaties, participated in various committees of the United Nations and provided international law advice to the South African government. An LLD degree was conferred on her by the University of South Africa in 2002. The research focused on the status and implementation of international law in South African law. Before relocating to the UK in 2009, she was a professor in the Department of Public Law at the University of Pretoria (2002–2009). She was one of eight members of the Technical Committee of Constitutional Experts responsible for the drafting of the South African Constitution of 1993. She has acted as a consultant to the African Peer Review Mechanism of the African Union in respect of Malawi, Kenya, Mozambique and South Africa.
Notes
1. One can do a law degree in the UK without studying EU law but it will not be considered a ‘qualifying law degree’ which will enable students to enter legal practice.
2. Haas EB, The Uniting of Europe: Political, Social and Economic Forces 1950–1957. Stanford, CA: Stanford University Press, 1958, pp. 32–59.
3. Ibid., p. 32.
4. Monet equates supranationalism to a federal institution see Mason HL, The European Coal and Steel Community. The Hague: Nijhoff, 1955, p.123.
5. Haas EB, The Uniting of Europe: Political, Social and Economic Forces 1950–1957. Stanford, CA: Stanford University Press, 1958, p. 34.
6. Reinisch A, Essentials of EU Law. Cambridge: Cambridge University Press, 2012, pp. 6–7; Harrison RJ, ‘Integration theory: context, scope and method’, in O'Neill M, The Politics of European Integration. London: Routledge, 1996, p.158.
7. Olivier GC & ME Olivier, ‘Models of regional integration: The European Union and The African Union’, Griffen's View on International and Comparative Law, 5.1, January 2004, pp. 44–6; Olivier GC & ME Olivier, ‘Models of regional integration', South African Public Law (SAPL), 19.2, 2004, pp. 351–64; and Olivier GC, ‘Regional integration in Africa: Cooperation without integration’, Strategic Review for Southern Africa, XXXII, 2, November 2010, p. 17. Another African scholar commenting on regional integration theories is Schoeman M, ‘Imagining a community – the African Union as an Emerging Security Community', Strategic Review for Southern Africa, 24.1, June 2002.
8. O'Neill M, The Politics of European Integration. London: Routledge, 1996, p. 80.
9. Haas EB, The Uniting of Europe: Political, Social and Economic Forces 1950–1957. Stanford, CA: Stanford University Press, 1958, pp. 3–19.
10. Olivier GC & ME Olivier, ‘Models of regional Integration: The European Union and The African Union’, Griffen's View on International and Comparative Law, 5.1, January 2004, pp. 43–50.
11. Turpin C & A Tomkins, British Government and the Constitution. Cambridge: Cambridge University Press, 2011, pp. 288–9.
12. See Geldenhuys DJ, ‘Brothers as keepers: Africa's new sovereignty regime’, Strategic Review of Southern Africa, 28.1, May 2006, pp. 1–2, 9–14.
13. O'Neill M, The Politics of European Integration. London: Routledge, 1996, pp. 27–8. See also Monnet J, ‘A ferment of change’, 1, 1963, pp. 204–8, 210–11.
14. See Haas EB, ‘The study of regional integration: Reflections on the joy and anguish of pre-theorizing’, in Lindberg LN & SA Scheingold (eds), Regional Integration: Theory and Research. International Organization. Cambridge, MA: Harvard University Press, 1971, pp. 23–4.
15. Lodge J, ‘The European Community and the challenge of the future’, 1993 as quoted by P Craig & G de Burca, EU Law Texts, Cases and Materials. Oxford: Oxford University Press, 2011, p. 2.
16. Reinisch A, Essentials of EU Law. Cambridge: Cambridge University Press, 2012, p. 4.
17. Ladeur K, ‘Towards a legal theory of supranationality – The viability of the network concept’, European Law Journal, 3.1, 1997, p. 33.
18. McCormick J, Understanding the European Union: A Concise Introduction. New York: Palgrave MacMillan, 2011, pp. 4–12.
19. Craig P & G de Burca, EU Law Texts, Cases and Materials. Oxford: Oxford University Press, 2011, p. 3; Checkel JT, ‘The constructivist turn in international relations theory’, World Politics, 50, 1998, p. 324.
20. Craig P & G de Burca, EU Law Texts, Cases and Materials. Oxford: Oxford University Press, 2011, p. 103.
21. Most standard international law text books provide a discussion on monism and dualism as theories explaining the relationship between international law and domestic law. See, e.g. Evans MD, International Law. Oxford: Oxford University Press, 2014, p. 417; and Shaw MN, International Law. Cambridge: Cambridge University Press, 2014, p. 21.
22. The South African Constitution, Act 200 of 1993.
23. Olivier ME, ‘International law in South African municipal law: Human rights procedure, policy and practice', LLD thesis, University of South Africa, Pretoria, 2002, pp. 114–35.
24. The South African Constitution, Act 108 of 1996.
25. For examples of how monism and dualism are reflected in national constitutions, see Evans MD, International Law. Oxford: Oxford University Press, 2014, pp. 418–25.
26. Kirsch N, Beyond Constitutionalism: The Pluralist Structure of Postnational Law. Oxford: Oxford University Press, 2010, p. 8.
27. Fairhurst J, Law of the European Union. Essex: Pearson, 2012, p. 269.
28. Case 26/62, Van Gend en Loos v. Nederlandse Administatie der Belalstingen [1963] ECHR 1.
29. Case 6/64 Flaminio Costa v. Enel [1964] ECR 585.
30. European Community Law emanated from the European Community, predecessor of the EU.
31. Craig P, ‘The hierarchy of norms', in Tridimas T & P Nebbia (eds), European Union Law for the Twenty-First Century, Rethinking the New Legal Order. Oxford: Hart, 2004, pp. 75–93.
32. Shaw MN, International Law. Cambridge: Cambridge University Press, 2003, pp. 241–5.
33. Reparation for Injuries, ICJ Reports 1949, p.174; 16 AD at 179.
34. Entered into force 13 September 1963.
35. Adopted in 2000, entered into force in 2001.
36. Dugard J, International Law: A South African perspective. Lansdowne South Africa: Juta, 2005, p. 28–9.
37. Sands P & P Klein, Bowett's Law of International Institutions. London: Thomson Reuters, 2005, p. 297.
38. Neves M, Transconstitutionalism. Oxford: Hart, 2013, p.56.
39. Ibid., p. 65.
40. Article 2(1).
41. Article 2(2).
42. Olivier M, ‘The emergence of a right to democracy – An African perspective’, in Panara C & G Wilson (eds), The Arab Spring: New Patterns for Democracy and International Law. Leiden: Martinus Nijhoff, 2013, pp. 39–44.
43. Preamble of the Constitutive Act of the African Union (2000/2001).
44. Article 3.
45. Article 4.
46. Article 5(1).
47. Article 5(2).
48. Protocol relating to the Establishment of the Peace and Security Council of the African Union, adopted by the AU Assembly, Durban, South Africa 10 July 2002 under Article 5(2) of the Constitutive Act, entered into force 26 December 2003.
49. Article 6(2).
50. Article 9.
51. Wade HWR, ‘The basis of legal sovereignty’, Cambridge Law Journal, 1995, pp. 172, 187–9.
52. Article 9(1)(e).
53. Article 9(1)(g).
54. Article 23(2).
55. Article 23(1).
56. Article 20.
57. Article 13(1) includes a list of such areas.
58. Article 13(2).
59. Article 17.
60. Article 18.
61. Article 9 of Protocol on Amendments to the Constitutive Act of the African Union.
62. On 24 February 2015 ratifications stood at 28 out of a possible 54, http://www.au.int/en/sites/default/files/Amendments%20to%20the%20Constitutive%20Act_0.pdf
63. Protocol to the Treaty Establishing the African Economic Community relating to the Pan-African Parliament 2001. The Pan-African Parliament's 235 Parliamentary representatives are elected by the legislatures of 47 of the 54 AU Member States rather than being directly elected in their own capacity.
64. Article 2(2).
65. Articles 2(3)(i) and 11.
66. http://www.pan-africanparliament.org/DocumentsResources_DocumentIntroduction.aspx. The Pan African Parliament held its inaugural session on 18 March 2004.
67. Amadi BN, ‘A Decade of Achievement’, 19/03/2014 , http://www.pan-africanparliament.org/News.aspx
68. Ibid.
69. See Cilliers J & P Mashele, ‘The Pan-African Parliament’ African Security Review, 21 July 2010, 73, http://dx.doi.org/10.1080/10246029.2004.9627321.
70. Mpanyane S, ‘Transformation of the Pan-African parliament; A path to a legislative body?’, Institute for Security Studies Papers, 181, March 2009; Hugo G, ‘The Pan-African Parliament: Is the glass half full or half empty', Institute for Security Studies Papers, 168, September 2008; and Terlinden U, ‘African regional parliaments – Engines of integration and democratisation?’, Hintergrundinformation aus der internationalen Entwicklngszusammenarbeit, September 2004, p. 1, http://www.ulf-terlinden.de/reports.htm.
71. See Cilliers J & P Mashele, ‘The Pan-African Parliament’ African Security Review, 21 July 2010, 75, http://dx.doi.org/10.1080/10246029.2004.9627321.
72. View expressed by Zwelethu Madasa, clerk of PAP in an article by Dimmer K, ‘Leading the Continent by Example’, Celebrating 10 Years, 19 March 2014,www.panafricanparliament.org.
73. Ibid.
74. Ibid.
75. Amadi BN, ‘A decade of achievement’, 19 March 2014, http://www.pan-africanparliament.org/News.aspx.
76. Terlinden U, ‘African regional parliaments – Engines of integration and democratisation?’ Hintergrundinformation aus der internationalen Entwicklngszusammenarbeit, September 2004, p. 13, http://www.ulf-terlinden.de/reports.htm.
77. Amadi BN, ‘A decade of achievement’, 19 March 2014, http://www.pan-africanparliament.org/News.aspx.
78. The ECOWAS Parliament was introduced in 1993.
79. Created by the East African Community treaty of 2001.
80. Formally launched in July 1996, it is the oldest regional parliamentary structure.
81. Adopted in 2002.
82. Terlinden U, ‘African regional parliaments – Engines of integration and democratisation?’ Hintergrundinformation aus der internationalen Entwicklngszusammenarbeit, September 2004, p. 6, http://www.ulf-terlinden.de/reports.htm.
83. Rules and Procedure of the African Commission on Human and Peoples' Rights, 2010, rule 3.
84. African Charter on Human and Peoples' Rights, 1986, Article 45.
85. Okafor OC, ‘The African Commission on Human and Peoples' Rights as a collective human security resource: Promises, performance and prospects’, in Abass A, Protecting Human Security in Africa. Oxford: Oxford University Press, 2010, p.10, www.oxfordscholarship.com.
86. Article 55.
87. Rules and Procedure of the African Commission on Human and Peoples’ Rights, 2010, rule 73.
88. African Commission, Resolution on Rwanda, 16th Ordinary Session (25 October to 3 November 1994), 28.
89. African Commission, Resolution on Anti-Personnel Landmines, 13th Ordinary session (13–22 March 1995), 37.
90. Resolution on Human Rights situation in Gambia, 2008.
91. Resolution on Maternal Mortality in Africa, 2008.
92. Resolution on Access to Health Care and Needed Medicines in Africa, 2008.
93. See for example the Ogoni case where the African Commission in 2001 considered a communication under Article 55 of the African Charter on Human Rights and Peoples’ Rights which dealt with alleged violations of human rights of the Ogoni people in Nigeria. This communication presented the Commission with the opportunity to deal in a substantive way with alleged violations of economic, social and cultural rights which formed the substance of the complaint. The decision has been published at http://www.cesr.org/ESCR/africancommission.htm. It was communicated to the parties on 27 May 2002.
94. See Coomans F, ‘The Ogoni Case before the African Commission on Human and Peoples’ Rights’, International and Comparative Law Quarterly, 52, July 2003, pp. 749–60.
95. (2000) ACHPR 2000.
96. Okafor OC, ‘The African Commission on Human and Peoples’ Rights as a collective human security resource: Promises, performance and prospects’, in Abass A, Protecting Human Security in Africa. Oxford: Oxford University Press, 2010, p. 23, www.oxfordscholarship.com.
97. Ibid., p. 25.
98. Kufuor KO, ‘Safeguarding human rights: A critique of the African Commission on Human and Peoples’ Rights’, Africa Development, 18, 1993, p. 65; Gittleman R, ‘The African Charter on Human and Peoples’ Rights: A legal analysis’ , Virginia Journal of International Law, 22, 1982, p. 667.
99. http://au.int/en/sites/default/files/achpr_1.pdf (accessed 24 February 2015).
100. http://www.african-court.org/en/index.php/2012-03-04-06-06-00/all-cases-and-decisions (accessed 24 February 2015).
101. http://au.int/en/treaties (accessed 24 February 2015).
102. As per Article 9. See also Viljoen F & E Baimu, ‘Courts for Africa: Considering the co-Existence of the African Court on Human and People's Rights and the African Court of Justice’, Netherlands Quarterly of Human Rights, 2004, p. 243.
103. Naldi GJ, ‘The role of the Human and Peoples’ Rights Section of the African Court of Justice and Human Rights’, in Abass A , Protecting Human Security in Africa. Oxford: Oxford University Press, 2010, p. 3, www.oxfordscholarship.com.
104. Ibid., p. 19.
105. Note 62 above.
106. Protocol relating to the Establishment of the Peace and Security Council of the African Union, adopted by the AU Assembly, Durban, South Africa 10 July 2002 under Article 5(2) of the Constitutive Act, entered into force 26 December 2003.
107. Preamble.
108. See Objectives, Article 3.
109. Article 12.
110. Article 11.
111. Article 13.
112. See Francke B, Security Cooperation in Africa: A Reappraisal. Boulder, CO: Lynne Rienner, 2009, pp. 153–212.
113. Abass A, ‘African peace and security architecture and the protection of human security', in Abass A, Protecting Human Security in Africa. Oxford: Oxford University Press, 2010, p. 16, www.oxfordscholarship.com.
114. Article 7(1)(g).
115. Article 7(1)(i).
116. Article 7(1)(o).
117. Article 4(h).
118. Adopted Addis Ababa, Ethiopia, 30 January 2007, entered into force 15 February 2012.
119. Franck TM, ‘The emerging right to democratic governance’, American Journal of International Law, 86, 1992, pp. 46–91.52; Fox GHR & BR Roth, ‘Democracy in international law’, Review of International Studies, 27, 2001, pp. 327–52.
120. ‘African solutions for African problems’ has become a well-accepted principle of the AU calling for authentic African solutions free from foreign interference.
121. To assist in this respect the African Commission on Human and Peoples’ Rights adopted Guidelines for African Union Electoral Observations and Monitoring Missions, http://www.achpr.org/instruments/guide-elections/ (accessed 29 June 2015).
122. Bekoe DA, ‘Introduction: The scope, nature and pattern of electoral violence in Sub-Saharan Africa', in Bekoe DA (ed.), Voting in Fear: Electoral violence in Sub-Saharan Africa. Washington, DC: US Institute of peace press, 2012, pp. 1–15.
123. Ibid.
124. Following 2014 elections in Mozambique, the main opposition Renamo, refused to take up its parliamentary seats protesting alleged widespread fraud and irregularities in the electoral process including ballot stuffing.
125. See note 118.
126. Article 2(4).
127. This provision also appears in the Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government, adopted by the OAU in 2000.
128. The PSC suspended Egypt following the ouster of former president Mohamed Morsi on 3 July 2013.
129. Kiwuwa DE, ‘Democracy and the politics of power alternation in Africa’, Contemporary Politics, 19.3, 2013, http://www.tandfonline.com/loi/ccpo20.
130. Abass A, ‘African peace and security architecture and the protection of human security’ in Abass A, Protecting Human Security in Africa. Oxford: Oxford University Press, 2010, p. 36.
131. See examples of the 2008 military takeover in Guinea and 2009 coup in Madagascar. Madagascar's suspension was lifted after instalment of a democratically elected leader in 2014.