Nsongurua J. Udombana
abstracted from: Nsongurua J. Udombana, The
Institutional Structure of the African Union: a Legal Analysis, 33
California Western International Law Journal 69-135, 69-73 (Fall 2002)
Just because we cannot see clearly the end of the road, . . . that is
no reason for not setting out on the essential journey. On the contrary,
great change dominates the world, and unless we move with change we will
become its victims.
Society is not static but dynamic as well as organic. It is made up
of both structure and system. The structure determines the parts that
are contained in it. The system determines how those parts interact with
each other. Law is social purpose actualizing itself. Law participates
in society's self-forming and in human self-socializing by retaining
past acts of social willing with a view to their actualizing into future
social willing. It organizes the hold of the social past on the social
future by organizing the hold of the social future on the social past.
The human situation is not a condition but a conjuncture. Hence, the
future is determined by the flowing conjuncture of society that is the
ever-changing result of an infinite number of actualities emerging from
an infinite number of possibilities. As Philip Allot puts it,
"[t]he present that was the future in society's past becomes . . .
the past of society's next future."
This brief abstract on the sociology of law is needed to indicate,
for example, how requirements of national life have compelled municipal
legal systems to recognize unincorporated associations as legal persons
and how international law is also being influenced by requirements of
changing international life. One example of the latter is the increasing
growth of international institutions or organizations over the last six
or so decades, mostly political bodies, "charged with political
tasks of an important character, and covering a wide field." These
institutions have become "active performers upon the world
stage" and have grown rapidly in recent years due, essentially, to
the increasing need for cooperation among nation-states based on
international norms. They provide a web of relationships that shape and
channel social interactions, taking over many functions that,
previously, were monopolistically regulated by States--such as control
over currency, passports and borders.
Norms are, of course, a part of international institutions,
establishing ground rules and roles and meanings to constitute,
constrain, shape and enable States and non-state actors. Indeed, the
modern international system is not "anarchic," if that term is
used in the Hobbesian sense to connote the absence of an actor with
legitimate authority to tell States what to do. States no longer carry
out mutual intercourse in a chaotic manner, without any regard for
common rules. Thus, while international institutions or organizations
afford the necessary opportunity for mutual intercourse, they also
provide means for international "governance"--defined as the
ability to set priorities and use power to realize them. Although
governance among sovereign and equal States has been regarded as
"governance without government," the conduct of States in
modern society is determined by certain principles and procedures.
International institutions also enable States to know what to expect
from each other. This allows them to routinely foresee and predict each
other's responses and to adjust their conduct to the behavior of their
counterparts. "This pattern of mutual expectations and reciprocal
behavior represents the very fabric of the international order." It
may be predicted that as long as the nation-stateremains the community
in which most men and women envision fulfillment of their social needs,
nation-states will continue to find ways to carry on their day-to-day
intercourse in an orderly and predictable fashion. This is the role for
which States have chosen to use international law as the fundamental
institution of international society. It is also for this purpose that
international law can be regarded as a serviceable instrument.
The above assertions hold true for the defunct Organization of
African Unity (OAU), which was established via a Charter (OAU Charter)
by the independent African States to promote inter-African cooperation
in the fields of economics, culture, science and technology. However, on
July 11, 2000, the OAU adopted the Constitutive Act of the African Union
(AU Act) to replace the OAU Charter. The AU Act, which established the
African Union (AU), was ratified with asthmatic breathlessness and
entered into force on May 26, 2001, less than one year after its
adoption. As of September 26, 2002, all former Member States of the OAU
have ratified the AU Act, with the exception of Guinea-Bissau and
Madagascar, though these two countries signed the Act on July 12, 2000.
It may be predicted that these countries will ratify the Act in the
coming months, not years.
The OAU was formally dissolved on July 9, 2002, during the last
(38th) ordinary session of the OAU Assembly in Durban, South Africa. The
AU was formally launched during the same period, holding its first
session between July 9 and July 10, 2002, also in Durban, South Africa.
With the launching of the AU, the OAU ceased to be an umbrella
international organization for collective Africa. However, during the
rites of passage, the AU Assembly sang nunc dimittis for the OAU,
praising it "as a pioneer, a liberator, a unifier, an organizer,
and the soul of [the African] continent." The Assembly also praised
the founding leaders of the OAU for "their tenacity, resilience and
commitment to African Unity" and for standing "firm in the
face of the decisive manipulations of the detractors of Africa and
[fighting] for the integrity of Africa and the human dignity of all the
peoples of the continent."
The AU Assembly, however, acknowledged that there are still promises
to keep and miles to go in actualizing true political and economical
emancipation of the continent. Consequently, the present leaders
rededicated themselves "more resolutely" to the principles and
objectives of the OAU "and to the ideals of freedom, unity and
development which the founding leaders sought to achieve in establishing
the Organization." The only obstacle is that transition from the
OAU to the AU may not necessarily mean a transition of current leaders,
many of whom ran the OAU as a mutual admiration club. These dictators,
despite the eulogy, brought their respective countries to their knees
due to bad governance, mismanagement and corruption.
This article undertakes a legal analysis of the institutional
structure of the AU. It will compare these institutions with their
equivalents in other sub- regional and supra-regional institutions,
notably the institutions of the European Union (EU), to identify areas
of strength and weakness.
In Part II, the article will adopt a bird's eye-view of the AU Act,
rather than a close-up or nuance picture. It will also briefly deal with
the question of legal status of the new body.
Part III examines the Organs of the Union and proposes ways of
strengthening these Organs. In other words, suggestions are embedded in
Part IV looks at the relationship between the AU, Member States and
their institutions, before concluding in Part V.
. Senior Lecturer, Department of Jurisprudence and International
Law, University of Lagos, Nigeria; former visiting Research Fellow, The
Danish Institute for Human Rights, Copenhagen, Denmark; LL.M., LL.B.