Constitutive Act of the African Union

Explanation and Analysis of the Document

The Constitutive Act of the African Union is not a complex document. It is written in simple, straightforward language that outlines the goals, governing principles, structure, and functions of the AU. It also sets up and defines the administrative functions of the AU.

Preamble and Articles 1–2

Perhaps the most interesting portion of the act is its preamble. It first lists the signatories of the act—virtually all of them presidents, with one king (Swaziland), two prime ministers, and Muammar al-Gaddafi, who goes by the cumbersome title, Leader of the 1st of September Revolution of the Great Socialist People's Libyan Arab Jamahiriya. The last word in his title is an Arabic term that loosely translates as “state ruled by the masses,” and “1st September” refers to the date in 1969 when he assumed power in Libya. The preamble then lists the motivations that led to the creation of the African Union. It makes reference to the founders of the organization and Pan-Africanists; the objectives of the OAU and AEC and the need to “accelerate the process” of implementing the AEC; the OAU's emphasis on “collective action”; the “social, economic and political changes taking place in the world”; the “common vision of a united and strong Africa”; the need to reduce conflict and provide for peace, security, and human rights; and finally the need to fulfill the call of the Sirte Declaration for establishing the African Union. The preamble is followed by Article 1, which simply defines terms and abbreviations, and Article 2, which declares that the Constitutive Act establishes the African Union.

Article 3

Article 3 states the fourteen objectives of the African Union, which are listed with little elaboration. The overarching purpose of the AU is to “achieve greater unity and solidarity” in Africa. The act constitutes a defense pact, since it calls for protection of the “sovereignty” and “territorial integrity” of the member states and pledges to promote “peace, security, and stability” throughout Africa. A further goal is to promote “political and socio-economic integration,” which is to be achieved by the AEC's regional trade blocs, called Regional Economic Communities; a closely related AU goal is to “harmonize” the policies of these trade blocs. A more general goal is to “promote and defend African common positions on issues of interest,” which the African states can accomplish through the United Nations. The union pledges to adhere to the United Nations Charter and particularly to the UN Universal Declaration of Human Rights, adopted in 1948. A further goal is to adhere to the African Charter on Human and Peoples' Rights, adopted by the OAU on June 27, 1981, and entered into force on October 21, 1986.

Article 3 also calls for the promotion of “democratic principles and institutions, popular participation and good governance.” In recent years, the AU has attempted to implement this objective through the African Peer Review Mechanism, a voluntary agency of the AU whose goal is to assess the political progress of member states. The mechanism, created in 2003, is an outgrowth of the New Partnership for Africa's Development and its Declaration on Democracy, Political, Economic and Corporate Governance, which was adopted at the same summit that produced the Constitutive Act. The African Peer Review Mechanism has been controversial, as member states and outside observers have contended that it has thus far failed to fulfill its mandate.

Article 3 then specifies another important AU goal as promoting sustainable development and enabling Africa “to play its rightful role in the global economy and international negotiations.” Meeting this goal has been elusive because of increasing desertification and water shortages, especially in the Sahel region. Also, by encouraging “cooperation in all fields of human activity,” particularly science and agriculture, the Constitutive Act expresses hopes for raising African living standards. A related goal is the eradication of disease and the promotion of good health. Two disease pandemics continue to ravage Africa. One is AIDS; as of the end of 2007 it was estimated that twenty-two million people in Africa were HIV-positive and that during that year some 1.5 million Africans had died of AIDS. As of August 2009, some twenty-five million Africans had died of AIDS-related complications since 1981. The other disease is malaria, which has claimed the lives of nearly one million Africans every year.

Article 4

Article 4 briefly states the sixteen principles that will govern the AU. In many respects, these principles overlap with the AU's goals. Article 4 asserts the principles of “equality and interdependence,” respect for territorial borders, participation of the people of Africa in their governance, and the need for common defense and peaceful resolution of conflicts. Each member state is prohibited from using force or the threat of force against another member state or meddling in another state's internal affairs. The Constitutive Act gives the AU the authority to “intervene” in member states under “grave circumstances” that include evidence of war crimes, genocide, and crimes against humanity, and any state has the right to solicit aid from the AU to “restore peace and security.” The last principle of Article 4 is a rejection of “unconstitutional changes of governments,” an ongoing problem in Africa, where coups (such as the one that brought Gaddafi to power) and attempted coups have been the norm in such countries as Nigeria, Ghana, Togo, Congo, Uganda, and many others, particularly in sub-Saharan Africa.

Article 4 also states social principles, including “self-reliance,” gender equality, and respect for “democratic principles, human rights, [and] the rule of law and good governance.” It calls for social justice, interestingly linking social justice with “balanced economic development.” Additionally, it calls for respect for the “sanctity” of human life and a rejection of terrorism.

Articles 5–9

Article 5 simply lists the official organs of the AU. With Article 6, the Constitutive Act turns to the nuts and bolts of the AU's operations. Articles 6 through 9 deal with the Assembly, which consists of the heads of state of the member nations. It is to meet once a year under the leadership of a chair who is elected annually for a one-year term. Article 7 states that the Assembly will favor reaching decisions by consensus, but in the absence of a consensus, a two-thirds majority vote is required. Article 9 then outlines the powers and functions of the Assembly: to determine “common policies” of the AU, to act on recommendations and reports from the AU's various organs, to consider requests for membership in the AU, to establish additional organs, to implement and monitor policies and decisions, to maintain a budget, to work with the Executive Council in emergency situations, and to appoint judges to the Court of Justice.

Articles 10–13

This sequence of articles deals with the structure and functions of the Executive Council, which is composed of the ministers of foreign affairs of the member states. The council's ordinary sessions are to convene at least twice each year. As in the Assembly, the preference is for consensus, but failing that, a two-thirds majority is needed for decisions. The Executive Council, which is answerable to the Assembly, is given oversight authority on such matters as foreign trade, resources, agriculture, water and irrigation, the environment, transport and telecommunications, insurance, education, science and technology, immigration and citizenship issues, social security, and a system of awards and prizes.

Articles 14–22

Articles 14 through 22 briefly lay out a framework for future AU activities. Article 14, for examples, creates a number of specialized technical committees to oversee such matters as agriculture; monetary and financial affairs; trade, customs, and immigration; industry, science, and technology; transport, communications, and tourism; health, labor, and social affairs; and education, culture, and human resources. These committees are assigned the tasks of gathering information and making recommendations to the Executive Council. They also charged with monitoring any programs that are implemented and ensuring that those programs are in harmony with the AU's goals.

The remaining articles in this group look to Africa's future. They call for the formation of a Pan-African Parliament; a Court of Justice (a protocol for establishing the court already had been developed in 2003); financial institutions such as a central bank, a monetary fund, and an investment bank; a secretariat to administer the AU; the Permanent Representatives Committee; and the Economic, Social, and Cultural Council.

Articles 23–33

This group of articles deal essentially with the rules or “by-laws” of the AU. Article 23 outlines sanctions the organization can impose on member states that do not meet their obligations; later, Article 30 notes that members can be suspended if the member's government comes to power through “unconstitutional means.” It should be noted, however, that most of the member states have failed to meet their financial obligations to the AU; in 2006, just twelve nations paid their contributions to the organization. Article 24 notes that the AU's headquarters will be in Addis Ababa, Ethiopia, while Article 25 specifies the AU's working languages (as opposed to official languages): Arabic, English, French, and Portuguese, with African languages used whenever possible. Article 26 gives the Court of Justice authority to interpret the act, while Articles 27 through 29 specify issues involving membership in the AU and when the act enters into force. Article 32 outlines procedures for amendment of the act, and Article 33 notes that there will be a transitional period while the functions and budgets of the OAU are being transferred to the AU.