The African Union And The New Pan-Africanism:
"Rushing to Organize or Timely Shift?"

Friday – February 21, 2003 – Saturday – February 22, 2003

Presented by The Thurgood Marshall School of Law at Texas Southern University

Panel Summaries and Abstracts

Panel I Human Rights, Governance and the Rule of Law

John Brittain--Moderator
Professor of Law
Thurgood Marshall School of Law

Mr. Curtis Doebbler
Consultant
International Human Rights

Adrien Wing
Professor of Law
University of Iowa

Dr. Peter Schroth
Professor of International Finance
Rensselaer Polytechnic Institute

      In 1963 the Organization of African Unity (OAU) was born. The OAU marked the first time in African history that independent countries of Africa sought to unite under one umbrella. This massive endeavor by the African continent had many goals. However, at that time, many African countries had just received their independence from colonial powers, apartheid in South Africa was still the order of the day, and other African countries were still politically unstable. Whatever the tenor of the struggle, through the OAU, the independent African countries sought to solidify their right to self-determination and protect newly independent countries. In the mist of this intense struggle, the emphasis of the infant organization was geared towards sovereignty and the notion of non-interference in the affairs of other African countries. The OAU sought to perpetuate the status quo. As such, little or no consideration was given to the issues of human rights.

       The eighteenth Assembly of Heads of State and Government adopted the African Charter on Human and Peoples’ Rights on June 17, 1981. Many argue that the Charter was and is a merit-less document. Whatever the case maybe, it should be noted that this was the first time that African leaders officially recognized the need to enact certain guarantees of human rights in Africa. The adoption of the Charter meant that human rights and human rights violations could no longer be swept under the carpet of national sovereignty. The adoption of the Charter made human rights in Africa an international affair.

       The Universal Declaration of Human Rights, the European Convention on Human Rights and the Inter American Convention on Human rights provided the African Charter with much of its language. The African Charter on Human and Peoples’ Rights guarantees among other rights (at least on paper) that Africans will have the rights to freedom from discrimination, equality before the law, equal protection of the law, inviolability of the human person, and respect for human life. These rights are often called “first generation rights”. The African Charter also guarantees economic, social and cultural rights often called “second generation rights”. However, under the Charter both sets of rights are given equal priority.

       In order to ensure the execution of the mandate of the African Charter, in 1987 the African Commission on Human and Peoples’ Rights was established. The Assembly of Heads of State and Government of the OAU elect eleven members through secret ballot to serve six- year terms in office. These elected officials are called Commissioners. The Commissioners then elect the Chairman and Vice Chairman. The Secretary-General of the OAU appoints the Secretary of the Commission. With its’ headquarters in Banjul, Gambia, the Commission convenes annually for two regular sessions. Each session lasts approximately fifteen days. Primary goal of the African Commission is to promote and protect human rights and prevent human rights violations in Africa.

       In 1998, eleven years after the African Commission was established, that the OAU formally adopted the Protocol creating an African Court on Human and Peoples Rights. The Assembly of Heads of States and Government elect the judges of the Court by secret ballot. The Court is made up of eleven judges whose countries are members of the OAU. The judges are elected to serve six-year terms, and can be re-elected once. The judges then elect a president and vice president that serve two- year terms and can also be re-elected once. The African Court was created to give assistance in the implementation of the protection of human rights in Africa. The jurisdiction of the Court covers all cases and disputes involving interpretation and application of the Charter, the Protocol, and Human Rights instruments ratified by the African countries comprising the OAU. The Court gives advisory opinions on legal matters relating to the Charter in relation to human rights. Unlike the African Commission, the African Court can give final binding judgments not subject to appeals.

       The dawn of the African Union in March 2001 brings with it much concern, some trepidation and general déjà vu. The speed at which the AU Treaty was ratified left many stunned. There is a general feeling among scholars and others that the 53 countries comprising Africa must unite in order to present a formidable thrust and contribution to global politics and world economy. The task ahead is indeed daunting. With the European Union (EU) model paving the way, Africa, through the AU, will have to prove to the world audience that it is poised and ready to take it’s position as a major contender and participant in world affairs. Such a massive endeavor cannot be addressed without first and foremost ensuring that certain basic principles of human rights, governance, and the rule of law are in place and being practiced in Africa. Our first panel will address how the AU will facilitate human rights, good governance and the rule of law in Africa.

       The first panelist Mr. Curtis Doebbler will discuss and address the unclear relationship between the African Commission of Human and Peoples’ Rights and the African Union on the issue of human rights. Beginning with a historical backdrop Mr. Doebbler will shed light on the areas of accord and discord between the two bodies. Mr. Doebbler will conclude his presentation with ways to ameliorate the problems of eroding human rights in Africa.

       Professor Adrien Wing will discuss human rights as it pertains to women in Africa. What role, if any, will the AU play in the development of women’s rights on the African continent? Will the AU do a better job of addressing the plight of African women, or is the 40-year legacy of the OAU the best that women of Africa can hope for? Professor Wing postulates that the only way the issue of women’s rights will be adequately addressed is if the AU and its cohorts determine that women’s rights and the betterment of women’s lives in Africa are issues worth addressing and devote the needed financial and human resources to combat the problem. Without such a focus the condition of women and women’s rights in Africa will continue in its path of inconsequence and deterioration as set forth by the OAU

       Dr. Peter Schroth's paper examines two contexts of the draft of the Organization of African Unity anti-corruption treaty. Initially reviewed is the existing and proposed anti-corruption treaties, especially the Inter-American Convention Against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Southern African Development Community Protocol Against Corruption, and the preliminary work on a proposed United Nations convention.

       Next, selected aspects of the Constitutional law of several African nations are examined. Constitutional courts in South Africa and Kenya recently rules that the appointment of judges to anti-corruption commissions is unconstitutional. This separation of powers problem is addressed with two additional constitutional issues: forfeiture of the proceeds of corruption in the face of a constitutional guarantee against excessive punishment and the criminalization of illicit enrichment in the context of a constitutional presumption of innocence and the right against self-incrimination.

       In conclusion, several criminal statutes and constitutional provisions are compared with counterparts in Australia, the United Kingdom, and the United States.

Panel II Conflict Prevention, Management, and Resolution.

Dr. Sanders Anderson--Moderator
Professor School of Public Affairs
Texas Southern University

Dr. Jeremy Levitt
Professor of Law
DePaul University

Dr. Clement Adibe
Professor of Political Science
DePaul University

       Post-colonial African politics is defined by a history of military revolts and civil wars. A constitutional change in government is a rarity. On numerous occasions, multiple factions have claimed to be the de facto government of a single State.
       The AU’s predecessor faced this reality when occasionally more than one delegation, each claiming the right of representation, arrived at OAU summit meetings. The OAU struggled with the appropriate response to this situation. The Charter prohibited interference in the internal affairs of a Member, and the OAU founders declared sovereign equality of all members. The uncertainty was further enhanced by the emergence of rival African organizations, which undermined the OAU’s effectiveness.
       Simultaneously, exceptions to the international legal principle of non-intervention in internal affairs began to emerge. In the 1990s, the international community grew to recognize and validate “humanitarian intervention.” Humanitarian interventions range from re-establishing democratic rule to actions taken to avert starvation and genocide.
       This seminar addresses various methods that the AU may utilize to mitigate deadly conflict on the continent. Possible responses by the AU to the inevitable illegal seizures of power are discussed. Finally, the new regional security framework is evaluated for conflict at the sub-regional level.

       Dr. Levitt's paper notes that the traditional rule of international law is non-intervention in internal conflicts. This rule is evolving as states and regional actors recognize “humanitarian intervention.” Humanitarian intervention occurs in response to serious violations of human rights. Examples of such violations include genocide, slavery, racial discrimination, and apartheid.
       Recent trends indicate that the international community might be expanding the criteria for intervention. When the Somali government collapsed in 1992, the UN mandated action to avoid threats to international peace and security. When faced with mass killings and tyranny in Yugoslavia, the international community condoned NATO’s use of force. In 1993, the UN allowed a single state, France, to lead a humanitarian intervention in Rwanda.
       For the first time, the international community ousted a de facto government in 1993. The UN ouster of Haiti’s de facto government represented the first time the international community defended a democratic institution. Following MISAB intervention in the Central African Republic in 1997, the UN placed a retroactive de jure seal of approval on a regional actor.
       The ECOWAS intervention into Sierra Leone suggests a further expansion of the criteria for intervention in an internal conflict. The toppling of the popular government, combined with the need for humanitarian assistance, was a sufficient justification for intervention by a regional actor.

Panel III Economic Liberalization and Integration: Myth or Reality

Craig Jackson--Moderator and Presenter Professor of Law
Thurgood Marshall School of Law

Max Chibundu Professor of Law
University of Maryland College of Law

James Gathii Professor of Law
Albany University

       The most recent phase of continental integration in Africa started out as an economic integration effort known as the African Economic Community. The AEC, which retains legal status as the economic phase of the African Union, was a response to the vision laid out in large part in the Lagos Plan of Action. The Lagos Plan, or all its detail, was a development document first and foremost. As such, the direction of economic integration in Africa has as its driving philosophy, economic development.

       However, where the Lagos Plan of Action, a document released in the early1980s, was a documentary prodigy of the New International Economic Order. The NIEO was a redistribution of wealth document which, had it been adopted in some generally acceptable legal form, would have directed industrialized states to engage policies of wealth redistribution in form of actual transfers and economic affirmative action in a variety of sectors. The Lagos Plan of Action continued this approach for African economic policy and encouraged a move toward industrial development patterned after NIEO principles.

       The African Union's economic approach dispenses with NIEO principles, an approach that went out of vogue no doubt aided by unrelenting pressure from Western economic interests. Instead, the AEC seeks economic development using acceptable capitalistic tools, with some reliance on preferential principles embodied in the rules of the world's economic institutions.

       This return to general economic policy pits general and development policy as articulated in the developmental literature and scholarly works. Clearly the two are different areas of discourse. However, general economic policy can be patterned with development goals in mind.

       An example of the point is the depth of economic integration anticipated by the AEC. Trade and customs integration is anticipated and as such, would fall under either the Article XXIV of the GATT 1947, or under the Enabling Clause. Both legal provisions, part of the World Trade Organization’s legal structure, apply to the basic exception to the most favored nations rule of international trade-the ability of groupings of states to set up preferential trading arrangements among themselves. Article XXIV originally applied to all states, but beginning in the 1970’s a separate legal regime for developing countries wishing to set up preferential arrangements was set up through the legal device known as the Enabling Clause of the General Agreement on Tariffs and Trade (now part of the WTO system). Both provisions deal with preferential trade, but the Enabling Clause takes the special matters of concern of developing nations into consideration in developing a legal regime more sympathetic issues of import substitution, more time to developing requisite trading disciplines, and access to other trade markets.

       The expectation is that the AEC will develop its economic, trade and monetary apparatus in a manner considerate of its developmental needs. And as such, it is triple duty. Not only will this have to be accomplished by accurate planning in the primary plane of economic policy, the developmental economics will have to be right on the mark as well. On top of all of that, the governance structure to accomplish the dual aims of economic integration will have to be there as well.

       Maxwell Chibundu engages the normal ideology in development planning and examines the AU to gauge it philosophically. Professor Chibundu critiques capitalist norms of development and assesses them within the context of the AU and NEPAD.

       Development means, depending on the theory, asset accumulation, income distribution, resource allocation among sectors, and sustainable development. Asset accumulation focuses on raw measures of national income in terms of gross domestic or national product, per capita income, and balance of payments measures which use raw economic data and mathematical models as a surrogate for real evidence of actual wealth distribution. The distribution model acknowledges the need to quantify actual distribution within a society, but has been modified to measure distribution of wealth in terms of a society's ability to provide basic needs which of itself is not the same as equitable societal distribution. The resource allocation approach is essentially economic policy, focusing on sectors, winners and losers, and the success of a society in picking sectors likely to bring highest returns. Industrialization as opposed agricultural development is favored under this focus because of the potential for diversification within the society. Finally sustainable development, the newest of the theories, approaches societal welfare in terms of its ability to maintain growth and development.

       Professor Chibundu regards both the AU and NEPAD as focused squarely on these traditional or mainstream approaches to development and questions the veracity of that approach. Indeed, these more recent approaches to economic development reflect a history of accommodating these models on the Continent. These models in one form or another argue for full immersion of African economy into the international economy. However, Professor Chibundu suggests an imprecise fit of these models into the African economic realities, which are, indeed, to some degree, designed to reflect non-African investment preferences than actual local economic and social needs. An alternative approach to development would focus on internal infrastructural needs and would build bridges between African traditional approaches and western theories. How this can be accomplished within the context of the current legal institutions as the AU and NEPAD are examined in his research.

       Professor Jackson examines the basic architecture of the economic legal provisions of African integration. Using the United States Constitution and the Treaty of Rome of the European Union, he considers "commerce clauses" of the three integration documents, perhaps betraying a slight Amerocentric approach. However, the US constitution's Commerce Clause comes in for criticism as what not to do when codifying economic policy in a constitutional document. The US Commerce Clause is a slight provision, the meaning of which remains a mystery more than two hundred years after it was drafted. The development of the US Commerce Clause has devolved more into an exercise of political philosophy than an exercise in legal interpretation and enforcement. This reality is palatable to an extent in large part due to the nature of the national polity--a collection of semi-sovereign states bound together as a single nation state in an exercise of federalism. The legitimacy of the interpreters of the US national economic constitutional principle, the Supreme Court, is unexceptionable precisely because of the limited sovereignty of each of the 50 states.

       In the context of a quasi-federation, where the constituent units are themselves nation states, interpretive discretion is a luxury that cannot be afforded. To have the vagaries of national economic policy dependent upon a transnational court's interpretation is not politically acceptable under these circumstances. The European Union meets this challenge with a detailed set of economic provisions, which serve to limit as much as possible judicial interpretive discretion in a way the 16 words of the US Commerce Clause never can. The African Union's African Economic Community treaty is a mix of detailed provisions policies to be developed later in protocols. Overall, given the number of constituent units, the level of development of those units, a more definitive and detailed economic codification might have been in order at the constitutional level.

       Professor Gathii examines the historical polarities of economic strategies, from the 1980s’ Berg Report, to the Lagos Plan of the same era. Both plans were diametrically opposed in design and strategy. Where is African economic policy now? On a Berg or Lagos plane? Professor Gathii looks at the NEPAD and the African Union to get a sense of the direction of economic strategy at present.

Panel IV Political Unionism or Regional Oligarchy

Dr. Jeremy Levitt--Moderator
Professor of Law
DePaul University Hank Richardson
Professor of Law
Temple University
Olodejo Olowu
Center for Civil and Human Rights
University of Notre Dame School of Law

       In modern Africa, graft and corruption have been a constant problem for many states. The international community applauds programs to protect and preserve endangered species, forestland, and cultural artwork. Yet, the response to corruption and graft is a deafening silence. The systemic corruption by many ruling parties is an obvious threat to economic development.

       The African Union must decide whether it will be more “pan-African” oriented than its successor. Will it be an organization that focuses more on collective interests, rejecting individual state interests as a means of governance and policy development. Will be an organization whose focus is really about the legitimate goals of unionism - economic development, democratization, cultural and social development - or continue the state-centered policies of the OAU? Will the AU evolve a genuine culture of political unionism or serve as an umbrella for regional oligarchy?

       Dejo Olowu makes the point that despite noble pronouncements, the African Union is dogged by doubts that it will not achieve any more goals than its predecessor, the Organization of African Unity. This skepticism may be well founded, because of formidable normative, institutional, and structural imperfections.
       This paper examines some inherent and value-oriented obstacles to the realization of its expectations. To what extent have African states surrendered their sovereignty to regional scrutiny, and on what basis? What are the power dynamics that will inform the operations of certain key institutions established at the twilight of the Organization of African Unity and organs newly created or proposed by the African Union? To what extent has African governments evinced the readiness to commit resources to the sustenance of this regional organization? Are there ways in which the metamorphosis of the European arrangement portends any lessons for the African experience?
       This paper identifies the African Union as a viable platform for result-oriented activism by Africans themselves and makes a case for the African civil society to gain active involvement in the objectives.

       Professor Richardson asks the question of whether communal governance of the AU will require a hegemon, or hegemons, to apply influence in the taking of major decisions, as an alternative to the paralysis that affected the OAU in the past. However, if such a “realist corrective” is justified, does this necessarily create the kind of oligarchical structure from which the African Union should steer clear? Or is the threat of oligarchical dominance dependent upon the silencing of diverse interests groups within the African polity. How does state sovereignty play into all of this?

ABSTRACTS

Dr. Curtis F.J. Doebbler “Complex Ambiguity: The Relationship Between African Commission of Human and Peoples’ Rights and the African Union”

When the new African Union succeeded the Organization of African Unity (OAU) little was said about its relationship to the African Commission of Human and Peoples’ Rights. This latter body had existed as an organ of the OAU, but was based on a separate treaty, the African Charter of Human and Peoples’ Rights. Concerns were raised in the Commission and among its observers about the provisions in the treaty creating the African Union. Among the provisions causing the most concerns were those calling for an African Court of Justice as well as provisions providing the African Union broad and ambiguous jurisdiction over issues of human rights. In subsequent months both the African Union’s secretariat and the Commission have taken steps to clarify their relationship. Nevertheless, ambiguities remain and the future is still somewhat unclear. Some questions that will be addressed in this presentation are: What are the steps that have been taken to define the role of the Commission in the new African Union? What problems remain? And how will the relationship may develop? In addition, the presentation will address some of the problems that plagued the Commission before the creation of the African Union and how the resolution of these problems might progress.

Peter Schroth’s: Constitutional and International Dimensions of the Proposed African Union Convention on Preventing and Combating Corruption

Work on the draft Organization of African Unity Anti-corruption treaty, first proposed in November 2001, has continued in the African Union, where the fifth draft version was approved at a Ministerial Conference on 18-19 September 2002. The African Union Convention on Preventing and Combating Corruption is now expected to be opened for signature in 2003.

This paper examines the draft Convention in two contexts. The first is existing and proposed anti-corruption treaties, especially the Inter-American Convention Against Corruption (1996), the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997), the Southern African Development Community Protocol Against Corruption (2001) and preliminary work on a proposed United Nations convention, expected to be completed about 2004.

The second context is selected aspects of the constitutional law of African countries. In highly publicized decisions, constitutional courts in South Africa and Kenya recently ruled that the appointment of judges to head anti-corruption commissions is unconstitutional. Candidates can be found for these positions who visibly possess the requisite competence, integrity and prestige but are not judges, but there are deeper constitutional issues to be considered in shaping anti-corruption statutes and treaties, particularly in bills of rights. This paper considers the separation of powers cases just mentioned and two other key issues: forfeiture of the proceeds or instrumentalities of corruption in the context of a constitutional prohibition of excessive punishment and the offense of illicit enrichment in the context of constitutional presumption of innocence and privileges against self-incrimination.

In addition to the treaties and draft treaties listed above, the paper considers aspects of the Nigerian Corrupt Practices and Other Related Offences Act 2000; the Kenyan Anti-Corruption and Economic Crimes Bill, 2000, which was defeated; the Mauritian Prevention of Corruption Act 2002; and the [30 October 2002 third draft of the proposed] South African Prevention of Corruption [Bill or Act, depending on whether it passes soon]. Selected provisions of the constitutions of several other African countries are considered and comparisons are drawn to constitutional decisions of the courts of Australian, the United Kingdom and the United States.

Maxwell Chibundu

After twenty years of neglect, issues relating to the economic development of African countries are again beginning to attract the attention of influential policy-makers in the West. African political leaders have sought to encourage this attention through such legal institutions as NEPAD and the AU. The construction of these institutions explicitly buy into the currently fashionable ideologies of development: namely that “good governance” and “the rule of law” are core determinants of economic performance. The object of my presentation will be to engage the possibilities offered by this convergence of ways of looking at economic development. I shall do so in the following ways.

Preliminarily, I shall contend that despite the ambiguities inherent in the idea of development, scholars and policy-makers have in fact exhibited a good deal of consensus as to what it is over time. I shall identify four such dimensions of consensus:
       The first and most common of the yardsticks for gauging “development” is the accumulation of material assets. Such aggregates as gross domestic product, per capita income, trade, investment and foreign exchange balances, all highlight this feature of undifferentiated collective welfare.
       -- The second relates to the distribution within a society of its accumulated wealth. The relevance and importance of this consideration was the primary contribution of the McNamara-led World Bank in the 1970s. The so-called “Gini coefficient,” which seeks to measure the parity of income distribution within a society, was introduced as a prescriptive tool for gauging economic development by “progressive economists” to challenge the then prevailing orthodoxy that economic growth should be measured solely in terms of increases in the aggregate accumulation of wealth. The result was that “progressive economists” of the 1970s who espoused “fair income distribution” as essential to economic growth contented themselves with a modified objective to equitable redistribution: the so-called “basic needs” approach. Rather than seeking to sell an economic policy that squarely confronted the problem of income inequality, it was sufficient that such policy asked whether minimum “caloric intake” was assured to the population at large. Beyond this minimum, a society wishing to engage in rapid economic growth could strive for aggregate increase in assets without worrying about distribution. This doctrine remains alive today, except that rather than worrying about individual caloric intakes, the new international (finance-led) order seeks to do away with poverty through such “communitarian” institutions as “micro credit”.
       -- The third yardstick is the allocation of resources within a national economy. On the assumption that there is a rational relationship between resource allocation and resource derivation, economic welfare is deemed best served by devoting national resources to those areas of economic activities that generate the highest returns. Because developing economies tend to be relatively small open economies that are “price takers,” they are better off with diversified economies capable of weathering changing patterns of tastes and preferences, rather than as monocultural economies, even if the relevant single product happens to be, at a given time, in considerable demand. National economies that allocate a preponderant amount of their resource towards product diversification (a feature characteristic of industrialization) rather than in extracting a single product (however richly the country may be endowed with that product), are thus likely to realize faster economic growth.
       -- Finally, a measure of national economic welfare is the capacity to sustain growth. It is perhaps the least understood component of development theory. Yet its centrality and relevance cannot be gainsaid. All economies are subject to dislocations caused by changes in tastes, preferences, resource endowments and technologies. Whether these dislocations are simply transitory, or whether they constitute the beginnings of a downward spiral are reflections of the maturity of the economy.

Next, I shall argue that policies recommended to and pursued by African policy-makers can best be understood as means of accommodating these understandings of development. By tracing five distinct periods of economic policy formulation in Africa, I shall demonstrate that notwithstanding their particularities, the policies embedded in these phases all shared the underlying philosophy of economic development as a historically determined sequential approach to growth which requires an outward focus. Full immersion of the African economy in the international economic order has thus been favored because the latter provides the necessary dynamism without which growth does not take place. This is true even in those phases of economic development that have been characterized as “nationalist” or “africanist.” The current prescriptions of NEPAD and the AU, I shall argue thus fit well within the mode.

Thirdly, I shall suggest that there is in fact a workable alternative underlying philosophy to economic development. It is one that focuses on fostering internal infrastructures such as health, educational and legal institutions. I shall suggest that these have not attracted the sort of attention externally focused development has for a variety of reasons, including the imperial character of knowledge acquisition and dissemination; its low returns to mobilized interest groups; the short-term focus of development policies; and, above all, the problem of measurement. I shall argue that the Tanzanian experiment with Ujamaa, rather than being seen as a discredited approach to economic development, should be viewed as offering useful information that can be harnessed to promote sustained and internally generated growth. In place of an ideology of growth that is sequential, this alternative would view growth and development in terms of social formations with implications both for economic self-sustenance and for lasting political organizations and institutions.

I shall explain how such an approach to growth would foster and bridge the gaps that exist in all African societies today: Between the modern and the traditional, the urban and the rural, the industrial and the agricultural, the social and the economic. Growth would be evaluated less in terms of material accumulation, and more on the basis of the symbiotic relationships forged among members of the society.

Finally, I shall explore what this alternative conception of the underlying philosophy of development has to say for the role of law and legal institutions in the development process. Ideas of “the rule of law” and of “good governance,” as currently articulated are framed instrumentally for the purpose of attracting foreign investment. They are captives to the needs and demands of the modern/urban sectors of African societies which are supply-based driven. Corruption, though universally denounced, is in reality a necessary byproduct of this ideology of development. The restructuring of legal institutions are proposed as responses to the same ills that are created and perpetuated by the ideology.

One might suppose, therefore, that a reoriented philosophy of development might provide new insights into the roles that law - and especially legal institutions -play in development. What might those be? For example, might law focus less on solving problems and more on mobilizing ideas and social institutions? Might law, instead of being a tool by which the government seeks either to keep crime in check or to attract foreign investment, become a tool by which individuals seek to delimit the sphere of government? These are the sort of hypotheticals that an alternative conception of development would warrant the examination of.

Operating Globally, Acting Locally: Challenges of the New African Union - From The Berg Report and the Lagos Plan of Action to NEPAD

James Gathii

The 1980 Lagos Plan of Action, hereinafter the ‘Lagos Plan’, prepared by African governments under the auspices of the Organization of African Unity and the UN Economic Commission on Africa, identified external economic dependence as a major factor accounting for Africa’s poor economic performance. The report recommended a reduction of sub-Saharan Africa’s external dependence on Western countries and capital and a replacement of this dependence with a self-sustaining development strategy based on a maximum internal use of the continents resources.

By contrast in its first major report on the economic crisis facing sub-Saharan Africa since the 1970’s, the World Bank’s Accelerated Development in Sub-Saharan Africa-An Agenda for Action Report (1987), hereinafter the Berg Report, prepared in consultation with African finance ministers, placed major emphasis on the improper economic policies pursued by sub-Saharan African governments as the primary cause of poor economic performance on the continent. The Berg report proposed a market-based economic strategy founded on outward or export-led growth.

These two ‘early’ analysis of Africa’s economic predicament proposed divergent solutions – one focusing on maximum internal use of the continent’s resources and the other on the enhanced integration of sub-Saharan African markets into the international economy. However, the Lagos Plan has been eclipsed into the background as African economies throughout the 1990’s expanded the agenda of market opening by implementing legal and policy reforms aimed at laying the groundwork for the success of these non-negotiable market reforms. These reforms have also included measures to improve public governance particularly in the efficient use of land, labor and capital as well as enhancing administrative and managerial capacities of the African state especially in supporting export oriented industries as well as serving the needs of foreign investors.

While the Lagos Plan of Action may have overstated the significance of factors external to Africa, the non-negotiable market reforms of the Bretton Woods institutions similarly overstate the importance of opening African markets to international commerce, trade and finance at the expense of funding basic needs like food, shelter and education.

My presentation is an inquiry of the extent to which the African Union’s economic plan, NEPAD, addresses the marginalization of Africa’s economic experience in a manner that embraces the complexity of the historical, domestic, international and other factors that are central to appreciating Africa’s economic predicament. It will explore whether NEPAD continues to account for Africa’s present and future economic predicament in the same totalizing polarities as the Berg Report and the Lagos Plan of Action. A basic premise of the presentation is that NEPAD adopts a market-centered approach to development primarily financed by flows of western aid and capital. In my view, as presently conceived, NEPAD therefore falls short of challenging and dismantling the structures sustaining inequality, poverty and hierarchy both within and without the African state that stand in the way of sustainable development.

REGIONAL SOLIDARITY FOR DEVELOPMENT AND THE AFRICAN UNION AGENDA:
CHALLENGES, GAPS AND OPPORTUNITIES

Paper presented at the Conference on the African Union and the New Pan-Africanism, held at the Thurgood Marshall School of Law, Texas Southern University, Houston, USA, 21-22 February 2003.

By
‘Dejo Olowu
LLB(Hons), LLM (Ife); LLM Human Rights & Democratization in Africa (Pretoria)
Barrister and Solicitor of the Supreme Court of Nigeria
Graduate Researcher, Center for Civil and Human Rights
University of Notre Dame Law School, Notre Dame, Indiana, USA.

Abstract

By the tenor of its establishing instrument, the African Union is poised to enthrone the elusive ideals of good governance and stability on the African continent. However, despite the persistent pronouncements by African leaders avowing their commitment to the founding ideals of the pan-African body, there have been expressions of cynicism about the capacity of the African Union to achieve any of those goals beyond what its predecessor, the Organization of African Unity, could achieve. The skepticism that has continued to dog the existence of this regional body may, however, not be unfounded considering some formidable normative, institutional and structural imperfections that may constitute impediments to the realization of the lofty goals of the body. There indeed remains a bundle of issues yet unresolved. As the African Union marches on in measured steps towards the realization of its set objectives, it is timely to examine some inherent and value-oriented obstacles to the actualization of the regional expectations within the scope of the African Union agenda. This concern is neither hypothetical nor abstract. To what extent have African states surrendered their sovereignty to regional scrutiny, and on what basis? What are the power dynamics that will inform the operations of certain key institutions established at the twilight of the Organization of African Unity and organs newly created or proposed by the African Union? To what extent have African governments evinced the readiness to commit their resources to the sustenance of this regional organization? Are there ways in which the metamorphosis of the European arrangement portend any lessons for the African experience? In detailed analysis, this paper examines this plethora of questions and highlights the structural and institutional capacity of the African Union to succeed in its mission beyond the province of its predecessor. The paper identifies the African Union as affording a more viable platform for result-oriented activism by Africans themselves and makes a case for the African civil society to seize the opportunity created by the African Union’s framework in gaining active involvement in the pursuit and implementation of the set objectives. The civil society in Africa will need to be sensitized to some of these new challenges. While acknowledging inherent and extraneous limitations, this paper attempts to proffer viable modalities for enhancing the actualization of the transformative visions of the African Union in concrete terms. END.

Craig L. Jackson: CONSTITUTIONAL STRUCTURE AND GOVERNANCE STRATEGIES FOR ECONOMIC INTEGRATION IN AFRICA AND EUROPE

       In a comparative effort to simulate the successes of the European Union, the nations of Africa have embarked upon an ambitious effort at continental integration designed to fulfill the developmental goals of the 1981 Lagos Plan, a planning document issued by the Organization of African Unity during its 1982 summit. (2) The outcome of this effort is the still unfolding drama of integration called the African Union, the heir apparent to the Organization of African Union is another scene in the African integration drama. (3) Preceding the Union was an effort at economic integration, the African Economic Community, whose treaty has become a part of the African Union constitutional structure. (4) The principles surrounding African integration are the same

^{2 The United Nations Economic Commission for Africa/Organization of African Unity The Lagos Plan of Action for the Comprehensive Development of Africa, 1980-2000 (Addis Ababa, 1980).
3 Constitutive Act of the African Union, printed in The African Journal of International and Comaparative Law, 2000 (hereinafter, AU Treaty). The African Union entered into force on May 26, 2001. In July, 2001, the OAU summit included on its agenda preparations for the transformation of the OAU into the African Union, to spell out operational details. The transformation from to the African Union took place on July 7, 2002 in ceremonies in Durban, South Africa. See generally, www.au2002.gov.za/docs/dbnsummit/, a website of the South African Government detailing the agenda and actions taking at the Durban Summit instituting the African Union.
4 Treaty Establishing the African Economic Community (hereinafter the AEC Treaty). The Constitutive Act of Africa Union states that inconsistencies between the African Economic Community Treaty and the Constitutive Act will be resolved in favor of the latter. AU Treaty Article 33.2.}

^{The AU Treaty and the AEC Treaty make up what will be referred to in this article as the constitutional structure of the African Union. The Union is the political body that incorporates the economic activities of the AEC. Like the European Union and the European Community, the political body is referred to dispositively when referring to activities of the regional integration body.}

The AEC Treaty covers economic matters. It also, when drafted in 1991, covered administrative matters having to do, primarily with economic issues. The African Union Treaty includes administrative provisions that cover a wide range of activities, including economic matters. This apparently means that the administrative provisions of the AU Treaty supercede the administrative provisions of the AEC treaty.

The existance of two separate treaties, tied together merely by a default provision in the later treaty creates problems of reference in academic works exploring African integration. The system is unlike the European Union system, a confusing system in its own right, where the Treaty of Economic Union (the Maastricht Treaty) amended the preceding Treaty of Rome (which was the treaty creating the European Economic Community in 1958, and, shortly thereafter, was amended, via the Merger Treaty to incorporate two other treaties dealing with the European Coal and Steel Community, and the European Atomic Energy Community). As such, when discussing economic issues of the European Community (which frequently is referred to as the European Union, though the latter refers to the broader entity in which political and foreign policy matters are addressed in addition to the economic issues of the Community), reference can be made simply to the Treaty of Rome as amended.

The African constitutional structure is not so simple. Accordingly, reference will be made to the African Union generally when referring to the continental integration (which in this work will be primarily references to economic integration). When referring to constitutional provisions having to do with economic matters, reference will be made to the AEC Treaty. General references to constitutional structure will be referred to as the African constitutional structure. References to non-economic matters will be made to the African Union Treaty with one exception. The African Economic Community Treaty had a more developed set of provisions regarding the African Court of Justice. Much of this structure is replaced by the African Union Treaty. Unfortunately, that treaty refers development of the details to the protocol

as for any regional integration: combine the resources of constituent members in an effort to achieve economies of scale, comparative advantages, and development. (5) The logic has not been lost on economic policy makers world-wide. Africa has had several sub-continental regional arrangements for years, and the world is literally filled with economic integration efforts among developing countries outside of Africa. (6) Yet African integration is uniquely interesting for several reasons. The continent is at the extremes in terms of underdevelopment (7) and some political instability (8)and its plans are complex, accelerated, and precise, (9) while it seeks to model itself after the European Union, a regional integration of mostly western European states.
       The model, European Union, (10) has been around for more than 40 years, in one form or another. The development of the European Union has also been characterized by

^{process. As a model of what a good justice system should include, reference is made in section ___ of this article to the judicial provisions of the AEC treaty.
5 Consider the theory of comparative advantage that suggests that nations will trade in those goods the production of which they are most efficient. Charles P. Kindleberger, International Economics 17-21, 27, 33 (5th ed. 1973). Consider also the theory suggesting that trading blocks create trade opportunities (trade creating), though admittedly with some trade diversion. Jacob Viner, The Customs Union Issue 44 (1950). Trade creation suggests that there will be more opportunities for efficient operations to excel, in large part because of the rearrangement of productive tasks among countries with different comparative advantages, tasks that lead to freely tradeable goods within economic integration, which in turn results in the development of more efficient operatations due to the increased competitition. The increased competition is accompanied by, however, increased market size and in theory, an increase in economic activity.}
There is substantial disagreement about the value of this new trade creation, because, some economists argue, it produces trade diversion or losses among non-members of a regional economic integration. See generally, 7Bhala, Raj International Trade Law: Theory and Practice (Lexis, 2001, 2nd ed.) 635-650.

^{6 There are 96 Article XXIV regional economic agreements that have been notified to the GATT/WTO as of May 2000. See WTO website at www.wto.org/wto/english/thewto_e/whatis_e/tif_e/bey3_e.htm. There are also 17 regional economic agreements that have been notified to the GATT/WTO under the Enabling Clause. See WTO website at .
7 See generally, Ndulu, Benno and van de Walle, Nicolas Agenda for Africa's Economic Renewal (Transaction Publishers, 1996) 3-31
8 Id at 8. But see note 10, Overview. Ndulu and van de Walle report that as of 1996, roughly two-thirds of the countries in the sub-Saharan region of Africa "can claim a sable civil environment and are today moving toward ore open and contested political systems." Id at 9. Ù
9 See sec. ___infra.}
(10) The term "European Community" or "Communities" is a shorthand reference to three communities of cooperation formed by several Western European states in the years following World War II, namely the European Coal and Steel Community (ECSC), the European Economic Community (EEC), and the European Atomic Energy Community (EAEC). The EEC, the most important of the three, has often been referred to simply as

fits and starts, but perhaps these were fits and starts that benefited the Unions development, (11) considering the depth of the integration. (12) The Union is generally regarded as a success so far in its incarnations as a free trade area/customs union/common market. As an economic union, exercising common economic policies, and as a monetary union, with a single currency, the verdict remains out. (13) Yet, it is because Europe has been successful in the former areas that economic and monetary union is being attempted, which could be a prelude to more formal deeper integration in the political and defense arenas. (14) Structurally, the European Union is helped along by a manageable number of states and a reasonably high level of development.
       In Africa, a continent of new states, leaders have devised a plan to create in effect, a United States of Africa or African Union, effectively reviving an old dream of one faction of the first generation of African leaders of independent states.

^{11 Jackson, Social Policy Harmonization in the European Union: A Model for North America? 21 N.C. J. Int'l L. and Com. Reg 1 at 18.
12 The Union's progress toward a single market was delayed until the 1980's when the plan to fully develop the "single market" was passed in 1986 under the Single European Act (SEA). Single European Act 1986. The Europe 1992 campaign, which resulted from the SEA, culminated in the realization of the so-called four freedoms which were part of the Treaty of Rome in 1952, but had not been completed by the mid-1980s. The Four Freedoms are freedom of movement of persons, freedom of movement of trade, freedom of movement of capital, freedom of movement of services. š
13 As of 2002, the euro was viewed as a success. Conventional Wisdom, The Economist, March 2, 2002. However, the euro's success is dependent upon the fiscal management of the nations within the EU. In the summer of 2002, France, Italy, Portugal, and Germany were requesting more time to eliminate budget deficits. FRED KAPNER, GEORGE PARKER and HUGH WILLIAMSON, Markets to give view on euro amid fiscal manoeuvres, Financial Times (London) June 24, 2002, Pg. 6.}

On July 15, 2002, the euro rose above parity with the U.S. dollar, closing the day at 1.008 dollars/euro. ALAN BEATTIE, LISA FINGERET, ALEX SKORECKI, CHRISTOPHER SWANN and STEVE THOMPSON, FTSE 100 plunges below 4,000 DOLLAR SLIDES TO PARITY WITH EURO AMID FEARS OVER US ASSETS: * WALL STREET RECOVERS AFTER SHARP FALLS, Financial Times (London), July 16, 2002, page 1.

^{14 At the same time as the Europe 1992 campaign, the Maastricht Treaty was agreed upon by the Member States of the Union. The Maastricht Treaty of 1992 resulted in the economic and monetary union, and substantial moves toward political union.
15 Nkrumah, Kwame Africa Must Unite (F.A. Praeger 1963).}

(15)An economic and monetary union is certainly key to this aspiration. From customs union to monetary union, the African Economic Community planned in 1991 a 34 year long effort to achieve what a more developed Europe barely accomplished in a little over 40 years. And to address the manageability issue, considering the number of states in Africa, African integration operates on the principle that constituent units are both member states and sub-regional integration units (regional trade agreements) such as the Economic Community of West African States (ECOWAS), and the Community of Eastern and Southern Africa (COMESA). Yet the focus is not a complete one inasmuch as the regional units are not yet reliable organiza tional structures, and have yet to exhibit the level of organization one might expect at such a crucial sub-regional level. And the whole plan, including the eventual demise of absolute sovereignty (in economic and monetary matters) is on the table in Africa among young sovereign nations. The issue causing some consternation is this economic "federalism" which requires the kind of cooperation and self-sacrifice that sometimes conflicts with notions of sovereignty. This might explain the record to date of little movement and coordination yet it does not explain the continued enthusiasm in the summits of heads of state for integration, a process that seems to languish for want of proper management following public comments of support. On the other hand, the delay might just mirror the same uncertainties occassioned by European leaders in the early days of European integration--again related to sovereign fears of "federalism".
       The European Union and the African Union certainly bear comparison. The structural similarities and overall goals are quite similar, and it is no secret that the latter was partially modeled after the former. But whatever other similarities between the two regions, the economic and development status of the two are quite different. This difference in status also suggests a difference in temperament that can be translated into a political will to create an economic community the result of which will be the

^{16 By the time the member states of the EU adopted a single currency, the euro, 41 years had passed since the Treaty of Rome went into effect in 1952.
17 AEC Treaty Article 6(2)(b).
18 To deal with the slow pace of coordinating the activities of the subregional communities, the AEC developed the Protocol on the Relationship Between the African Economic Community and the Regional Economic Communities, African Legal Materials in 10 African Journal of International and Comparative Law 157 (1998).
19 Even at the sub-regional level, this is a problem. One former official of a west African economic community suggested that the decision-making model in that community--consensus, executive discretion, failure to delegate authority away from heads of Jstate--has to do with the relative lack of experience with the culture of integration in West Africa as compared to the European Union. Interview on file with author. Perhaps consistent with that observation is the fact that the experience that Africans have had with integration have not been good or successful ones, and that, has to do with the relative youth of the sovereign nations in Africa.
20 Irving Williamson and Stephen D'Alessandro, New prospects for private sector led trade, investment, and economic development in sub-Saharan Africa, Law and Policy in International Business, June 22, 1999. See also John Matshikiza's comment, "Highfalutin, but will it fly?" Mail and Guardian, July 12, 2002.
21 See discussion of the Luxembourg Accord on page ___infra.}

relinquishment of some degree of national sovereignty. As an older grouping of states, it might be expected that national confidence translates in Western Europe into a willingness to experiment with a quasi-federal structure. As a younger group of states, it might be expected that national confidence might not be as great in Africa for a myriad of reasons, and this would affect the political will to follow through on the groundwork for a quasi-federal structure. Certainly, comparing the histories of economic integration in general, and the two treaties in particular support this observation. These relative political wills ought to be reflected in the constitutional documents of each agreement, and perhaps the relative progress of the two integration efforts can be explained by the degree to which each constitutional document reflects the realities of the states being integrated. The Treaty of Rome included obligations stated in the kind of detail one might expect for integrating the economies of sovereign nations. Relatively little discretion is left to the "federal" governing bodies, relative that is to constitutions designed for federal states comprised of non-sovereign sub-units such as the United States. The African constitutional structure consists of obligations with significantly less detail than the Treaty of Rome. The constitutional structure also will govern sovereign states that are new, poor, and relatively underdeveloped and not very strong, having only a generation ago struggled to free themselves from the rule of several of the members of the EU. Yet that treaty in its relative lack of detail when compared to the constitution of the much stronger EU, does not seem to have been drafted with the understandable skittishness leaders of the new African sovereigns will likely have to the idea of turning over sovereignty to a central body. This paper is concerned with uncertainties and theories of governance that might reflect the uncertainties in the development of supranational integration communities focusing on federalism. The paper will consider the kinds of constitutional models and what they suggest for sovereigns in a federal system. All of this has to be considered through a lens of the respective stages of development of the two continents, not to mention the resources needed for such ambitious undertakings. By comparing the AEC with the European Union the paper will develop a theory addressing governance and state sovereignty within federal and quasi-federal circumstances, as applied to African integration.

Henry Richardson: “THE DANGERS OF OLIGARCHY WITHIN THE PAN- AFRICANIST OBJECTIVES OF THE AFRICAN UNION”

Introduction

^{22 By this, note is taken of the fact that the subregional groupings have not actively pursued their economic agendas on the whole. Several efforts have been made to jump start the integration process, yet none have successfully moved integration toward completion of its mandate. The most recent effort, the African Union, will be a critical step in determining the future of economic integration in Africa.}

I will first address the clash between national sovereign prerogatives and African continental - which I will call communal - aims which predate the Organization of African Unity in Africa. This paper will next address the question of justification for applying a “realist corrective” in approaching any system of communal authority - including continental authority in Africa. I will argue that notwithstanding the strength of the Pan-African vision and strategies in Africa over the years, including in the AU, such a “corrective” is justified in approaching the question of African communal governance on a continental basis. We apply such a “corrective” by asking whether any few or single participants in the communal system of authority control or substantially influence that communal system and its important decisions. That is, whether an oligarchy of richer, more powerful states and leaders can be identified within the African system of communal continental governance.

The question of oligarchy necessarily raises issues about who among African groups and peoples will be silenced by which legal interpretations of the African Union Treaty and NEPAD arrangements: labor unions? Local NGO’s but not INGO’s? Traditional authorities? Prime Ministers and Presidents of African States who either basically do or basically don’t represent the majority of their citizens? African small farmers, particularly as they comprise women? Those peoples and groups fighting for effective protection of individual human rights? Those infected with HIV or suffering with AIDS? Those peoples, organizations and groups who believe that further liberation work in self defense against heavy oppression in their particular African states must be done to protect basic rights, even if it involves use of armed force against a corrupt or dictatorial, non-democratic government, but who do not consider themselves “terrorists”, nor do they aim to hurt innocent people, nor ally themselves with known international terrorist organizations? This paper cannot answer all these questions, but I hope to provide constitutive insights under which they might be effectively met.

Applying such a “corrective” is reluctantly justified for several reasons of recent African history, which I will briefly discuss. And then when we bring this dialog between communal authority and the “realist corrective” to the new African Union, we find the possibilities of several sources of oligarchic dangers, which I will discuss briefly. But to raise these possibilities also raises the question of whether a few strong oligarchical states and leaders in the African Union are necessary as regional hegemons to organize an effective African system of communal governance. This in turn raises other important issues, including the role of the African people and civil society in crucial issues of recognition and acceptance of such oligarchs relative to the African Union and also NEPAD.

I will conclude with some final reflections on state sovereignty and the African Union for the future.