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Chapter Three African Union Agenda on Constitutionalism and Democratic Governance for Africa
Introduction
The main objectives of the Organization of African Unity (OAU) right from its formation were to eradicate colonialism and to combat racial discrimination.1 The strengthening of unity and solidarity between African states had all along been recognized as imperative for the achievement of its objectives while the protection of the sovereignty and territorial integrity of member states remained the guiding principle. At that time, the acceleration of the process of socio-economic development and integration of the continent was not the primary concern of the organization. Accordingly, the imperative of promoting and protecting human rights, consolidating democratic institutions and culture, and promoting good governance and the rule of law as the necessary adjunct of sustainable development strategy was not the preoccupation of African leaders. Rather the preservation and protection of their hard won independence, territorial integrity and the struggle against the remaining vestiges of colonialism and apartheid engaged their attention.
However, after the euphoria of the successful fight against colonialism and racial discrimination and transition to democratic governance came the reality of internal political conflicts, instability, unconstitutional changes of government, abuse of human rights, lack of progress and authoritarianism and impunity by the African leaders themselves. Therefore, there was the need for a paradigm shift of principle to that of collective responsibility in order to effectively deal with the above challenges especially to enable member states to collectively intervene in internal affairs of states in grave circumstances of human (and state) security violations. This requires the building of partnerships and multilateral relationships between governments and all segments of the civil society.
The collective responsibility paradigm was also intended to specifically deal with the challenge of constitutionalism and democratic governance in Africa which originally the OAU was not structured to promote under its Charter. It was therefore imperative to further strengthen the unity and solidarity of African peoples and restructure the organization to enable the continent to deal effectively with its contemporary challenges. Therefore, guided by their common vision of a united and strong Africa, the continent’s leaders decided to transform the OAU into a new, more ambitious AU imbued with the necessary structures and mandates to enable it confront its contemporary internal and global challenges.
The formation of the AU to replace the OAU remains the most significant turning point in the effort of Africans to join the global trend towards the entrenchment of constitutionalism and democratic governance as the necessary adjunct of a successful and sustainable development agenda. Thus, in accordance with its agenda, the AU has over the years progressively developed and established various normative principles, institutions and mechanisms aimed at promoting constitutionalism and democratic governance in its member states. This is particularly significant based on the redefinition of the principles of the Union under the Constitutive Act, from the doctrine of non-interference in the internal affairs of its member states to that of non-indifference, especially with the ‘rejection and condemnation of unconstitutional changes of government’.2
The progressive development of the AU agenda on constitutionalism and democratic governance in Africa through the AU legal instruments became crystallized in the AU adoption of the African Charter on Democracy, Elections and Governance.3 This Charter in our view constitutes the most comprehensive and bold attempt to institutionalize, promote and protect democratic ideals and good governance in Africa and therefore deserves special analyses. The AU normative frameworks, institutions and mechanisms all together constitute the ‘AU agenda on constitutionalism and democratic governance’.4
In this chapter, the imperative of the promotion of the AU agenda is treated not only as an end in itself but also as a means of achieving the other objectives of the AU. The development and pursuit of the AU agenda from the era of the OAU to the era of the AU is analyzed. The purpose is to assess the efforts being made by the AU in setting and implementing its agenda and explain the need for interface amongst the AU governance institutions, with particular focus on the pivotal role of the PAP.
Specifically, the following issues are treated under this chapter: The development of constitutionalism and democratic governance during the era of the OAU; The AU agenda on constitutionalism under the era of the AU; Constitutionalism and democratic governance through the AU Legal Instruments; The effectiveness of the AU in promoting its agenda on constitutionalism and democratic governance; and the interface between the PAP and the AU governance institutions in promoting the AU agenda. The chapter concludes by underscoring the pivotal role of PAP as the key organ to coordinate, harmonize and synergize with the other governance institutions for the successful implementation of the agenda.
Constitutionalism and Democratic Governance during the Era of the OAU
It is a notorious historical fact that before the formation of the OAU, the African continent had been subjected to slavery, colonialism and various forms of exploitation by European colonial powers. During the colonial era, authoritarian rule anchored on force and coercion, rather than dialogue and consensus, and abysmal abuse of human rights of Africans were in vogue. The oppressive colonial system of governance was used at the time to subjugate Africans to the socio-economic and strategic-political interests of the European colonial powers. Even the countries that had gained independence were not economically independent and as such could not control their own destiny which was still tied to the apron strings of their colonial masters. It was the painful and dehumanizing condition to which Africans were subjected that inspired the spirit of pan-Africanism, making it necessary for all African states to unite and cooperate in order to effectively respond to contemporary socio-economic and global challenges.
Thus, the formation of the OAU was prompted by the desire to regain the dignity of Africans, to promote the welfare and well-being of the African peoples, to safeguard and consolidate the hard-won independence as well as the sovereignty and territorial integrity of member states, and to fight against neo-colonialism in all its forms.5 In pursuing this desire, the African leaders were persuaded by the fact that the Charter of the United Nations and the Universal Declaration of Human Rights provide a solid foundation for peaceful and positive cooperation among states.6 Against the above background, the leaders established the OAU with the following purposes:
- To promote the unity and solidarity of the African States;
- To coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa;
- To defend their sovereignty, their territorial integrity and independence;
- To eradicate all forms of colonialism from Africa; and
- To promote international cooperation, having due regard to the Charter of the United
Nations and the Universal Declaration of Human Rights.7
From the foregoing, it is apparent that the preoccupation of the OAU leaders at the time was to defend the sovereignty and territorial integrity of African states and their inalienable right to self determination and independent existence, as well as the total emancipation of the African territories that were not yet independent. Judging the performance of the OAU based on the above, it can be argued that the OAU achieved its primary purposes following the total decolonization of Africa and the ultimate eradication of apartheid in South Africa. However, though the promotion of democratic governance, respect for the rule of law and human rights was mentioned as one of its purposes,8 this was not top on the organization’s agenda.
With the achievement of decolonization and independence and freedom from colonial rule and domination, there were transitions from authoritarian rule to multi-party democratic governance in most African countries, especially in the 1980s and early 1990s.9 Expectations from the citizens were justifiably high as the people of Africa had hoped for strong, united and prosperous states in which the rule of law prevailed. Instead, after the euphoria and the optimism that greeted the strong wave of democratization, the people’s hope remained unrealized due to a chain of related and mutually reinforcing factors including bad governance, impunity of the leaders and violent political conflicts. These factors rendered the achievement of the socio-economic development and integration of the continent impossible.
Title
Declaration of originality
Dedication
Acknowledgement
List of abbreviations
Abstract
Table of content
Chapter one General Introduction
1.1 Background
1.2 Problem Statement
1.3 Objective of the Study
1.4 Research Hypothesis/Assumptions
1.5 Research Questions
1.6 Justification for the Study
1.7 Research Methodology
1.8 Scope and Limitations
1.9 Literature Review
1.10 Structure of the Thesis
Chapter two Theoretical Basis for International Organizations’ Role in Promoting States’ Constitutionalism
2.1 Introduction
2.2 The Link between Constitutions and Constitutionalism
2.3 Constitutionalism and the Rule of Law
2.4 Constitutionalism and Democratic Governance
2.5 Constitutionalism and International Organizations
2.6 International Organizations’ Legitimacy in Promoting States’ Constitutionalism
2.7 Sovereignty and the Challenge of Constitutionalism
2.8 The Role of Parliaments in Promoting Constitutionalism
2.9 Concluding Remarks
Chapter three Au Agenda on Constitutionalism and Democratic Governance for Africa
3.1 Introduction
3.2 Constitutionalism and Democratic Governance during the Era of OAU
3.3 The AU Agenda on Constitutionalism and Democratic Governance
3.4 AU Legal Instruments on Constitutionalism and Democratic Governance
3.5 The effectiveness of AU in Enhancing its Agenda on Constitutionalism
3.6 The Interface between PAP and AU and Governance Institutions in Promoting AU Agenda
3.7 Concluding Remarks
Chapter four Appraisal of the Role of the PAP in Promoting Constitutionalism and Democratic Governance in Africa
4.1 Introduction
4.2 The Vision for the Establishment of the PAP
4.3 Interrogating the Parliamentary Status of the PAP
4.4 Rational for the Limited Mandate of the PAP
4.5 Objectives, Powers and Functions of the Pan African Parliament
4.6 Assessment of the Activities of the PAP and its Potentials under the Protocol
4.7 Promotion of Constitutionalism and Democratic Governance by the PAP
4.8 Promotion of Constitutionalism and Democratic Governance by Model Laws Making
4.9 Promotion of the AU Integration Agenda
4.10 Concluding Remarks
Chapter five The Revised Protocol and the Transformation of the PAP: Possible Implications
5.1 Introduction
5.2 The Transformation Process of the PAP
5.3 Changes Introduced by the Revised Protocol and their Possible Implications
5.4 The Challenge of Ratification of the Revised Protocol
5.5 The Role of National and Regional Parliaments in the Ratification Drive
5.6 The Role of other Stakeholders and the challenge for the PAP
5.7 Capacity Challenges for the PAP under the Revised Protocol
5.8 Concluding remarks
Chapter Six The Role of other Regional Parliaments in Promoting Constitutionalism and Democratic Governance in Member States: Lessons for the PAP
6.1 Introduction
6.2 Parliamentary Assembly of the Council of Europe
6.3 The European Parliament
6.4. The East African Legislative Assembly
6.5 The ECOWAS Parliament
6.6 Lessons for the PAP
6.7 Concluding Remarks
Chapter Seve Conclusion
7.1 Introduction
7.2 Summary of Key Findings
7.3 Recommendations
7.4 Concluding Remarks
Annexure
List of Treaties, Statutes and Instruments
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