African Union Law

The Emergence of a Sui Generis Legal Order

Olufemi Amao

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138914940
• eBook ISBN: 9781317427452
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the emergence of African Union (AU) law as a legal order and its implications for existing order in the region. As an authoritative text on the development of AU law, the book covers such pertinent issues as legislative powers, competences, direct effect in AU law, subsidiarity, interventionism, and enforcement of laws.

Olufemi Amao argues that there is a gradual movement from intergovernmentalism to supranationalism in the African Union legal order, and explores how this trajectory gradually and incrementally de-emphasises the discourse on nation state sovereignty; a concept that has caused many problems in the African context. Drawing upon EU law as a comparison, the book also examines how the development of supranationalism affects crucial issues such as human rights, democratic reforms, territorial matters, tribal and religious disputes, and economic relations.

As a comprehensive examination of the development of law within a union, this book will be of great interest and use to students, scholars and practitioners in international law, international relations, and African studies.

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1    Introduction

The core argument that this book seeks to provide evidence for is that, either wittingly or unwittingly through the activities of the Organisation of African Unity (OAU) and particularly its successor, the African Union (AU), a new continental legal order is evolving in Africa. While it is acknowledged that the emerging legal order is a work in progress, this book shows how the legal order has developed in its own peculiar and unique way. The book considers the AU and its institutions as norm ‘entrepreneurs’ or generators, standard setters and lawmakers at the continental level. It also considers the Constitutive Act of the AU as a continental-level social contract and a constitutional instrument. This is contrasted with the Organisation of African Unity, which was not designed or conceived as a norm- or law-generating institution. Nonetheless, the OAU played a noteworthy role in the development of the AU legal order.

A key driver behind the emergence of the AU legal order is the need to find collective solutions to problems and challenges peculiar to the African continent. As shown in Chapter 2, the OAU was created with the aim of collectively responding to some of the major challenges facing the continent post-independence. These include eradication of all forms of colonialism, defending the sovereignty and territorial integrity of Member States and developmental challenges. This limited and somewhat restrictive role shaped the contribution that the OAU could make to the emergent AU legal order. Indeed, the OAU fell short of the Pan-African idea of a united Africa that was influential in the lead up to the independence of Member States. The emergence of the AU appears to have revived that idea and it is helping to drive forward the emergent AU legal order. As discussed in Chapter 2, it is notable that the African Union legal order is developing with its own peculiar characteristics that are different from any existing legal order. These peculiar characteristics are reflected in the core instruments underpinning the continental legal order.

In Chapter 3, an attempt is made to identify and categorise the various sources of AU law. This task is challenging because the norms and standards have developed in a wide variety of ways, over several decades, and range from non-binding soft law to binding norms. Chapter 3 also addresses the question of the legal personality of the AU. This question was dealt with and laid to rest by the African Court on Human and Peoples’ Rights (African Court) in Femi Falana v. African Union.¹ It is noteworthy that some of the AU (and OAU) instruments made references to ‘Laws of the Union’ or ‘African Law’ without defining what it is or identifying its sources. By adopting and adapting Maluwa’s categorisation of AU/OAU treaties, the chapter provides a useful categorisation of AU/OAU legal instruments.²

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This book is designed to be less focused on the political and the institutional issues but instead focuses more on aspects of the development of the AU and its predecessor and their institutions that have normative and legal standard-setting implications. The Constitutive Act of the AU is a fundamental source because of its constitutional status and its extensive scope. It is also observed that continental level judicial and quasi- judicial jurisprudence have emerged as an important source of AU law. The Pan-African Parliament, which was inaugurated in 2004, is expected to play a significant role as a source of law in the future. It is also noted in Chapter 3, that some borrowed principles from the EU legal order are playing a notable role in the AU legal order. These include the principles of subsidiarity, proportionality and direct effect.

Chapter 4 addresses the issue of membership of the AU. The recent accession of the newly created Republic of South Sudan and the return of Morocco to the African Union membership show why the issue is important. It is notable that under the OAU regime the conditionalities for membership were regarded as being very lax. The AU regime introduced a level of control over the admission to membership but, compared with the European Union (EU) regime, the conditions introduced are still very weak. Robust membership conditionalities have the potential of enabling the AU to shape Member States’ behaviour and ensure that prospective Member States have the capacity to meet their membership obligations. In addition, there is also the question of whether States that are not based in the African continent but with close connection to Africa could join the membership of the AU. Indeed, Haiti, a Caribbean State with its population consisting mostly of people of African descent, attempted unsuccessfully to join the AU in 2012. The ability of the AU to impose sanctions on Member States for failure to comply with AU policies and decisions under Article 23 and 30 of the Constitutive Act is a major development in relation to the enforcement process within the AU legal order and forms part of the discussion in the chapter. The chapter also covers the implication of membership for Member States’ citizens and the bid to harmonise citizenship rules at the continental level.

Since independence from colonial rule, Member States of the OAU/AU have recognised the importance of economic integration in the quest for development. Despite this recognition, progress has been slow in this sphere when compared with the human rights sphere. As discussed in Chapter 5, the adoption of the Treaty Establishing the African Economic Community (also known as the Abuja Treaty or the AEC Treaty) in 1991 has significant implications for standard setting and norm creation in the economic sphere. It is notable that the design and structure of the AEC have supranational features and have been co-opted into the AU framework. The utilisation of regional economic communities (RECs) as building blocks to achieve the objective of the AEC has led to key developments at the regional levels in areas such as trade and tariff, currency unification and freedom of movement. It is also contended that the relative success of the Organisation for the Harmonisation of Business Law in Africa (OHADA) shows the potential for supranational norms in the economic sphere in the continent. Notably, the compatibility of the OHADA legal order with AU legal instruments was considered in Kevin Mgwanga Gunme et al. v. Cameroon, ACHPR.³ This decision is discussed in Chapter 5.

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Chapter 6 focuses on the theme of peace, security and the rule of law in the AU legal order. The challenges posed by conflicts, insecurity and lack of respect for rule of law have led to a keen focus on these issues, which has resulted in the development of new norms and standards. The OAU played a role in this sphere but, because of its adherence to its norm of non-interference, its role was limited. The development of new norms, especially under the AU, has led to significant and potentially radical changes. These new norms, which have expanded the AU’s ability to impact Member States, include the non-indifference norm, the norm of unconstitutional change of government, the human rights norm, and the responsibilities to protect and of democratic constitutionalism.

Perhaps the most developed norm to date is the human rights norm. At the heart of the human rights system at the continental level is the African Charter on Human and Peoples’ Rights. As discussed in Chapters 7 and 8, the application of the provisions of the Charter by the African Court on Human and Peoples’ Rights and the African Commission have shaped the emergence of a credible jurisprudence on human rights in the continent. The jurisprudence is also significant because of the peculiar and distinctive features of the African human rights system. The evolving use of provisional or interim measures and the expanding powers of the continental court system also has significant implications for the future. In addition, the African human rights jurisprudence is having notable impact in Member States’ courts and also on individual rights in Member States.

One of the key challenges facing the AU legal order is reconciling its emerging norms and standards with prevailing conception of custom and morality across the continent. In Chapter 9, the controversial issue of sexual orientation is used as a case study to explore this tension and the ways in which the AU institutions are grappling with it. Chapter 10 focuses on the mechanism for enforcement of AU law, which, it is acknowledged, is a major challenge to the AU legal order. The chapter focuses mainly on the available judicial and quasi-judicial enforcement mechanisms at the continental level. It is envisaged that with the introduction of the African Court system there is a possibility that the enforcement process could become more robust in the future.

Notes

1    Femi Falana v. African Union, Application 001/2011.

2    See Chapter 3.

3    Kevin Mgwanga Gunme et al. v. Cameroon, ACHPR, Communication No. 266/03 (2009).

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2 The development of the concepts of African law and African Union law

Africa: an introduction

There is no consensus as to the origin of the name ‘Africa’ and to how it came to refer to the modern continent of Africa. It has been suggested that the word may have originated from a Greek word with the meaning ‘without cold’ or the reference in Latin to a ‘land of Afri’.¹ It has further been suggested that it may have been the Romans or the Carthaginians who first called the continent by that name.² In pre-colonial times the region that comprises modern-day Africa was made up of disparate tribal kingdoms and communities with the main commonality being the geographical contiguity of these entities. Pre-colonial communities identified themselves by their tribe or community. This will have a significant bearing on the development of laws and legal systems. The use of the word ‘Africa’ was popularised by European contact with the region and their need to give an identity to a region that was previously known as the ‘dark continent’.³

Africa is the second largest continent on the planet. It is the second most populous continent after Asia. There are 55 sovereign countries in Africa including Sahrawi Arab Democratic Republic (Western Sahara), a Member State of the African Union (AU) whose statehood is disputed by Morocco. The continent has an estimated population of 1,032,532,974, accounting for over 14% of the world’s population. The continent is bordered by the Mediterranean Sea to the north, the Suez Canal and the Red Sea along the Sinai...

Table of contents

• Cover Page
• African Union Law
• Title
• Copright
• Contents
• Dedication
• Foreword
• Acknowledgements
• 1 Introduction
• 2 The Development of the Concepts of African Law and African Union Law
• 3 Ascertaining the Sources of African Union Law: A Needle in a Haystack?
• 4 Membership of the African Union
• 5 African Economic and Business Law: Green Shoots in the New Economic Legal Order
• 6 Peace, Security, the Rule of Law and African Union Law
• 7 Human Rights in African Union Law
• 8 Economic, Social and Cultural Rights and Group Rights in African Union Law
• 9 Custom, Morality and African Union Law: The Case of Sexual Orientation in Africa
• 10 Enforcement of African Union Law
• 11 Conclusions
• Appendix 1 Constitutive Act of the African Union
• Appendix 2 Protocol on Amendments to the Constitutive Act of the African Union
• Index