THE ARCHITECTURE AND CAPACITY OF THE AFRICAN UNION

By Prof. Maria Nzomo
Institute of Diplomacy &International Studies
University of Nairobi

Paper presented at the AU/ADF lll Symposium, 3 - 8 March 2002

Some Comments on the AU Constitutive Act

I wish first to comment briefly, on the AU Act as launched in July 2001

The Act is indeed a major improvement on the 1963 OAU charter, in terms of its objectives and the Institutional Framework outline for realizing its objectives. It is particularly gratifying to note that among the objectives of AU is the promotion of gender equality and respect for democratic principles, human rights, the rule of law and good governance. It is also positively significant that among the proposed organs of the Union include a Pan-African Parliament and the Court of Justice. I will return to these momentarily.

The Clause of non-interference

I wish to express the view that the inclusion among the objectives of AU Act, of the clause of non-interference of any member in the Internal Affairs of another, has a negative claw back effect that is likely to dilute if not completely impair the effective implementation of the very positive objectives on the promotion of democratic governance, human rights and the rule of law provided under Article 3 clause (i), (m) and (n) of the Charter. In this regard, it will be recalled that one of the major factors contributing to the poor performance of the OAU arose from the application of the Clause of non-interference. The old argument of non-interference in the internal affairs of other African countries, should be abandoned altogether or further clarified.

Missing Organ of the Union:- Gender Commission/Gender Advisory Committee

I am of the view that to fully implement the objective of promoting gender equality there is need for a mechanism or institution specifically for that purpose termed: Gender Commission(GC) and/or. Otherwise, there is the very likely possibility that the grand objective of gender equality would not be realised under AU. The role of this Commission then is primarily to ensure that the AU's objective of promoting

gender equality is actually realised in both spirit and action. In this regard, the GC should monitor evaluate, review and recommend gender mainstreamingin all organs and activities of the AU. The Commission would monitor the application of AA as necessary to ensure the gender equity in all the governance and decision-making structures and processes. This Commission should be headed by a competent and committed person, preferably a woman who should hold the rank of all other heads of the organs of the Union. GC should work closely with the ECA's ACW and a senior representative of ACW should be a member of the GC. The membership of the GC should be derived from representatives from members chosen by national civil society organisations with a gender mandate. A Gender Advisory Committee on the other hand, would be a standing committee in each one of the key organs of governance within AU, with the mandate to ensure the minimum 30% women representation is attained, and where necessary, through Affimative Action.

Principle of Power Sharing -There is no way in this day and age that AU is going to succeed unless the principle of power sharing is accepted, internalised and practised. This is the only way a workable methodology can be developed for creating synergy/co-operation commonality of purpose and vision between the work of the new AU and the existing regional sub-regional initiatives. Furthermore, if the African Union is to succeed, national governments must agree to give up some of their sovereignty for the common good of Africa as a whole.

Political Will and Commitment

The perennial problem of many African initiatives such as the AU and NEPAD is good statements and resolutions of intent are rarely matched by genuine collective commitments and capacities for sacrifice and monitoring or implementing these resolutions. Africa must this time put its money where its mouth is, in the following areas:-

.Inclusion and enqaqement of non-state sectors

Up to now the AU process, has been driven almost exclusively by governments. To that extent, the process has neither been participatory nor inclusive. In order to achieve the objective of democratic governance as well as to succeed in its overall mjssion, AU must broaden participation to include representatives of CSOs, professional bodies, research institutions and the private sector. Apart from dialogue forums, between the AU and these sectors, competent representatives from these sectors should be recruited to contribute to the capacity building and implementation of the mandates of some of the constitutive organs of the Union. In short, civil society and other organised non-state actors should become genuine stakeholders and an important resource on which to build the Union

Operationalization of AU's Pan-african Parliament

In my view the process and criteria of selection or election of those who are going to serve as people's representatives in AU Parliament, is extremely important and will determine whether or not the parliament is going to be truly people's parliament or another high level political talkshop. If we leave the membership of this August institution open ended, we are likely to end up with individuals termed "people's representatives" but who for all practical purposes, are highly partisan appointees of the Heads of States and Governments or at best with some marginal and partisan representation of registered political parties, as happened in the recent case of appointments made to the new EAC Parliament.

In my view therefore, both the process and criteria of selection must be democratic and inclusive of both governmental and non-governmental sectors of society . Ordinary citizens must be given the opportunity to popularly select from among their genuine representatives those who should be considered for the AU Parliament.

This is one area where the AU has an opportunity to ensure the engagement of African people to feel a sense of ownership of this body and to be encouraged to support it as another talk shop of state functions. The criteria for selection must also exercise Affirmative Action ¹ to ensure that a system of proportional representation and quotas to ensure that certain critical but marginalised social categories especially women are not left out of the selection process.

.Court of Justice

This is another place with many opportunities for inclusiveness, popular support and promoting good governance and the rule of the law in Africa. However, it is likely to also encounter many pitfalls unless it is well thought out in the process of operationalisation. I suggest the following:

.In recruiting its membership, it must ensure the engagement of relevant and competent non-state sectors, especially professional legal bodies, in the choice of its membership. It is also important to clarify the mandate and jurisdiction of this institution and how it will relate with national courts and

other existing sub-regional legal institutions, to ensure complimentarity rather than competition. It is also important to clarify whether this court will have the same mandate as the EU Court Justice, which has supremacy over national courts and hence may rule national invalid if it conflicts EU law. Secondly, individuals as well as states can bring cases to it.

.Specialized Technical Committees

This is one area where the participation of civil society, research institutes and Universities can be fully utilized in providing the technical expertise that the AU requires. This social sector has such expertise in abundance in all African countries. Again Affirmative Action should be exercised here to ensure that competent representatives of women and other marginalised categories are proportionally selected in the recruitment process.

.The Economic, Social and Cultural Committees

This I believe should be the principle organ for promoting social justice and ensuring balanced economic development. This is another institution where civil society experts can have an important role to play in partnership with government actors and the private sector. The CSO's enormous experience in social service delivery and their proximity to ordinary African citizens, makes them an asset in this proposed institution. But again, the process, methodology and criteria of selecting its membership must be inclusive, participatory and generally democratic.

Where will the Resources for AU.s Institution buildinG and manaGement come from ?

.Self Reliance-sourcina from Africa itself

Regular payment of membership dues by all member states- As they say, charity begins at home.

Africa also needs to strengthen its indigenous resource base and reduce its overdependence on external bilateral and multilateral funding sources. There is thus urgent need to diversify its production base and lobby as a united body, for better international terms of trade, better prices for 1ts export commodities and cheaper prices for imported goods. Concerted effort needs to be made to strengthen partnerships with the African sector in promoting and broadening Africa's industrial base and inter and intra African trade with a view to reducing dependence on imports of manufactured consumer commodities.

There is, across the continent, a general lack of confidence in political institutions and political leaders as a result of the exclusion of citizens from structures and processes of governance. Thus, most view government driven initiatives with suspicion and/ or indifference. And yet, for AU to succeed there is need for it to build people's faith in its institutions, with a view to exploiting the enormous potential, human and material resources that have been mismanaged or underutilized in almost all african countries. The AU should therefore, work out viable strategies for galvanising African peoples to serve their continent and reverse the process of brain drain that has been so prevalent in many African countries, and that has largely contributed to the constant loss of the highly skilled Africans and dependence on foreign experts. Popular participation at all stages and levels of AU process, should be viewed as an invaluable investment that will payoff in the form of peoples support and willingness to contribute both human and material resources needed strengthening of AU.

In this connection, the African Private Sector can become a major source of monetary resources for AU. But first, the private sector of Africa to become true partners and stakeholders with the AU, it is important to engage this sector from the outset even during the preparatory stage of forming the AU and its organs. the private sector should also be included in relevant technical committees, for both their input, as well as to develop a sense of ownership of AU. Further, governments should create a conducive environment for this sector to grow and become a multinational economic force. Indigenous Pan-African companies, in my view, are more likely to become reliable sources of funds than foreign multinational firms.

.Avoid reinventina the wheel and cut costs
Building new institutions from scratch is an expensive enterprise. I would suggest, in this regard that in building AU we should not just ask where resources are going to come from but also how we can cut down on costs. As part of a strategy of reducing costs of building and managing AU, there is need to examine and consider adopting and strengthening the still relevant existing OAU institutions instead of disbanding. In addition, collaboration with the sub-regional institutions should also involve utilizing their structures wherever possible and as appropriate, to perform some of the AU functions.

B7 Genuine partnership with UN and multilateral sources should also be encouraged and strengthened. I am however not comfortable with over dependence of the AU on external donations from Western bilateral or multilateral sources, as this is likely to compromise the autonomy of the AU as has happened with the OAU and other regional and sub-regional institutions.

B7 Structural Relationship with Existing Regional and Sub-Regional African Institutions

Africa cannot be said to be short of International, Regional and Sub-regional institutions with various mandates for promoting everything from economic integration, human rights and conflict and peace keeping matters. These institutions that include ECA, ADB, ECOWAS, SADC, COMESA, etc.

I think the greatest challenge of the AU will be to develop meaningful partnership and linkages with these institutions and to avoid creating parallel institution that will duplicate rather than compliment the work of these institutions. My proposal would be that, the AU should in the short term delegate some of its functions that can be performed within the structural and operational frameworks of these regional and sub-regional institutions, with a view to promote linkages and collaboration, as well as reduce its own operational costs. Concurrently I representatives from these sub-

regional bodies, should be incorporated into both the specialized technical committees as well as the Economic, Social and Cultural Council of AU.

In regard to NEPAD, although at the moment it is not integrally linked to the AU, and seems to have taken a separate life of its own with support from Bretton Wood's institutions and other International donor agencies, it is evident that it shares many of the same principles and objectives as AU. Though differing on strategies, they are both aimed at promoting development, democratic governance and African capacity building to face the challenges of the 21st century, including globalisation. Both NEPAD and AU also face the challenge of how to make the process more inclusive and participatory , based on effective consultation and participation from the widest range of stakeholders. The point therefore is that AU should take on ownership of NEPAD so that the latter can serve as an economic framework for implementing AU objectives rather than working at cross-purposes.

CONCLUSION

To strengthen AU, the following principles should be the basis for institutional Capacity Building:

Values/Principles

· Strong Governance Framework.

· Political will

· Popular participation and inclusiveness.

· Spirit of self reliance and sacrifice.

· Harmonization and co-ordination of AU institutional framework with those of existing regional and sub-regional institutions to develop complimentary synergy rather than duplication and competition.