Transcript of the conversation between Pr. Hajer Gueldich and Dr. Steve Tametong – watch the entire conversation here
Dr. Steve Tametong: Created by the Syrte Declaration of September 9, 1999, the African Union (AU) was officially launched in 2002. What is the context of the creation of this continental institution? Was this the sign of the failure of the Organization of African Unity (OAU)?
Prof. Hajer Gueldich: I would not say a failure, but everything depends on the context of the creation of the first and the second institution. Driven by the pan-Africanist movement, the OAU aimed to put an end to apartheid, to this kind of discrimination and mass slavery. Then, when the 1960s arrived, the founding fathers of so-called modern pan-Africanism – Léopold Senghor, Bourguiba, Nkrumah etc. – created the OAU, which had no goal of integration, but the fight against colonialism and ‘apartheid. Once these objectives were achieved, it was necessary to change course. The Heads of State considered that the OAU could no longer respond, some forty years later, to the new aspirations of African States, given that the number of these States had increased from thirty-two to fifty-five. It is in this context that the OAU will be officially launched at the Durban summit in 2002 in South Africa, and this is the reason why we are celebrating 20 years since the creation of the AU whose headquarters are in Addis Ababa in Ethiopia. The objectives of the AU are the promotion of democracy, human rights, good governance, economic development, but above all integration, therefore Agenda 2063 constitutes the compass of action today.
ST: What are the ideological determinants that controlled the transition from the OAU to the AU?
HG: It’s good to talk about ideology. Before the AU, there was still an OAU weakened by political and ideological divisions. For example, the admission in 1984 of the Sahrawi Arab Republic led to Morocco’s withdrawal from the continental institution until its return in 2017. For its part, the AU was driven by the ideology of promoting peace and integration of the continent. This was conditioned by three factors. The first is the establishment of a Continental economic Free Trade Area with freedom of movement, freedom of flows, freedom of services and an African passport. The consideration of this economic factor, absent from the objectives of the OAU, was the sign of a major ideological change. The second factor, which is extremely important, is the consideration of peace and security issues with the creation of the Peace and Security Council (PSC). The third marker of this ideological change is the appropriation of the slogan unity is strength. It was for the AU to build a prosperous, united, integrated and secure Africa.
Unfortunately, I have the impression that we – Africa – are very strong in slogans, very relevant in texts, in charters, in declarations, in everything that is normative and institutional. But where is the real political will to make this continent a united continent? To make the African population one? Of course, African population has his part of responsibility. We don’t know each other. We are not in solidarity with each other. And that is a handicap. I think we have to go back to Africa. We have to go back to our roots. It is our duty to put ourselves hand in hand.
ST: The democratic modalities of the conquest and devolution of power are put to the test by military coups, the phenomenon of eternal power or even that of hereditary power. What analysis do you make of the action of the AU in the face of these attacks on the principles of democracy?
HG: Thank you very much for this great question. I will talk about the democratic deficit and the coup d’etat syndrome in Africa. Already, the Constitutive Act of the AU (in its article 4) condemns and rejects unconstitutional changes of government (UCG). This founding act was supplemented by a Charter unprecedented in international law. If you are going to read it, the African Charter on Democracy, Elections and Governance (ACDEG) contains the tools to consolidate democracy, prevent unconstitutional changes of government and sanction them.
Unfortunately, Africa is not immune to coups. When they are perpetrated, the AU simply condemns them. Is condemning coups enough? There is also the suspension of the bodies of the organization. But sometimes we ask ourselves questions. For example, the AU suspended Guinea, Burkina Faso, but it did not suspend Chad or Sudan. Both are unconstitutional changes of government. The amendment of Article 4h of the Constitutive Act will make UCG an international crime which will fall within the jurisdiction of the future African Court of Justice and Human and Peoples’ Rights. This is to tell you that we have all the keys, everything we need to stem the UCG .
I would like to mention an extremely important chapter in the ACDEG which speaks of democratic culture and this is the keystone of the whole system in Africa. African states have not yet been able to reach this stage where democracy becomes a culture. This requires a radical change of mentality for free, honest and independent elections, freedom of expression, respect for human rights, peaceful alternation in power. Perhaps the example of Tunisia since 2011 is quite illustrative insofar as there is an awakened civil society. But there is a long way to go and all of this requires a democratic culture that is well rooted in people’s mentalities.
ST: With the exception of some countries like Botswana, Mauritius, Namibia, etc. most African countries are indexed, year after year, in African and global rankings relating to good governance, corruption, or illicit financial flows. In your opinion, has the AU lived up to the challenges inherent in promoting good governance on the continent?
HG: Once again, I will come back to the radical change in mentality. Are we imbued with the values of good governance, transparency and accountability? I think that is not the case and I will give you concrete examples. There are corruption issues even within the AU institutions that fight corruption. And that is outrageous. A few years ago, an audit of the African Peer Review Mechanism (APRM), an AU body created precisely to promote good governance, revealed several dysfunctions. The former chairman of the Anti-Corruption Committee himself was implicated in a corruption case. It is therefore not enough to set up institutions which are in reality empty shells.
We have a real problem and to achieve a more functional organization, we will have to change our mentality. Whoever has a position, who has money under his control, will have to be aware that it is a great responsibility and that there are accounts to be rendered. You will have to be transparent. There are many dysfunctions and problems, not only within the African Union, even within the States. We must move up a gear, that of the sudden and brutal change of mentalities. African citizens also have a major role to play in the fight against bad governance. Today there are green lines, cell phones, these are new weapons. If there are corruption problems, they must be denounced on the various social networks. And it is in this way that we can precisely draw the consequences of cases of corruption and others.
ST: What are the strengths and weaknesses of the African human rights protection system built around the three main organs, the African Court on Human and Peoples’ Rights, the African Commission on Human Rights and Peoples and the African Committee of Experts on the Rights and Welfare of the Child?
HG: In the box of strengths, I will put to the credit of the AU that it has a very fine Charter of human and peoples’ rights. The other conventions, European and inter-American on human rights, do not emphasize the rights of peoples who are very dear to us. On the other hand, we have texts that are ahead. We have extraordinary innovations that are not found anywhere in general international law. And that is an African specificity. I cite for example the Kampala convention on internally displaced persons of 2009. We also have the famous article 4h of the AU Constitutive Act which allows intervention in cases of crimes against humanity, war crimes , crimes of genocide. We have almost gone from non-interference to non-indifference. From a commission that had no binding force, no enforceable decision, we created an African Court, which, despite everything, exists. Its jurisprudence is radiant, extremely interesting, and subject to various interpretations and numerous studies.
As for the weaknesses and there are many, I will start with the great problem of the will of the States to execute the judgments of the Court or to take into account the recommendations which are made by the two other quasi-judicial organs of the AU. Worse, when a State does not agree with the Court’s case law, it will withdraw. You will recall that at least four states have withdrawn from Article 34(6) which gives NGOs and individuals direct access to the African Court on Human and Peoples’ Rights. I will end with dysfunctions and structural and financial problems. Very few financial resources, very few staff. The structure does not meet the requirements. This is the reason why I do not think that consolidating human rights and dealing with mass violations pass exclusively through control and prevention bodies. Once again, a real humanist culture is needed throughout the continent but also in civil society and the media. We need to instill these human rights issues in our children, in schools, in families. We have a common responsibility.
ST: How do you describe the action of the AU’s Peace and Security Council (PSC) in the face of the outbreak of hotbeds of conflict on the African continent? Does the echo of the slogan “silencing the guns ” resonate on the continent in the face of the expansion of terrorism and violent extremism in the Sahel and in sub-Saharan countries?
HG: I would say that we are very strong in slogans. Unfortunately, we are still in conflict. In Africa, people kill each other and yet we do not have a single arms manufacturing plant on the continent. Added to this are issues relating to radical fundamentalism and terrorism. Compared to the African Peace and Security Architecture (APSA), it is quite a construction and you will be very surprised to see that there are about ten overlapping structures, which are there precisely to respond to the security issues and to address security issues. But we only see the PSC. And yet, he is not alone. Certainly, the PSC is the decision-making organ of the AU in matters of peace and security. It is made up of fifteen elected member states, but unlike the UN Security Council, no member has a right of veto. It is a collective security and early warning system that aims for a rapid and effective response to conflict and crisis situations in Africa. It is extended to the level of the regional economic communities.
However, we cannot achieve economic and political integration if security issues are not under control and unfortunately they are not. The slogan “silencing the guns” does not correspond at all with reality. There are negotiations and a huge amount of work being done within the PSC and other structures. But the record is meager and the proof of these failures is Mali, Libya, Sudan, the Central African Republic, Ethiopia, Cameroon. There are also many problems in the North and East of the Congo. The bill is paid by the African population. These are civilians like you and me, women, children who are still massacred on a daily basis. If we want to achieve integration, build a united and prosperous Africa, let’s start at the beginning, ie offer our citizens a peaceful space where we can circulate freely and without fear.
ST: What is the current state of development of the AU institutional reform process?
HG: I have the great privilege of being part, since 2017, of the panel of eleven personalities that the champion of the reform, his Excellency Paul Kagame, the President of Rwanda, had chosen to think about the reform. A report was made in 2017 and it was entitled “the imperative to strengthen our union”. The objective of the reform is to refocus the AU on key priorities that affect the entire continent. It’s a huge project, it’s a very ambitious project whose process has been somewhat slowed down by the advent of COVID -19. Nevertheless, the reform remains in progress. Regarding the Kaberuka tax – he does not want it to be called that because it is an African Union tax – it is a 0.2% tax on imports (CIF value – Freight insurance cost) of African countries (excluding intra-African trade) of certain products. There are several attempts that have been made despite the reluctance of some states, because money is the sinews of war. If you don’t control your money, you don’t control your decision and President Kagame hammered it home in all his speeches: you don’t have to beg anymore, you have everything and the AU will have to be self-financing.
Then, there is everything related to the work of structural reform and the transparency of the recruitment process within the organs of the AU where people without diplomas or skills occupy positions unduly. The sessions of the Conference of Heads of State and Government have been reduced to one per year. We have gone from eight to six Commissioners within the African Union Commission. The New Partnership for Africa’s Development (NEPAD) has been transformed into the AU Development Agency. Sanctions are envisaged for States that do not pay their contribution. There is a colossal project to make the Pan-African Parliament a real parliament elected by the African peoples and whose mission is to codify the texts. For the moment, he does not have this role. It’s just an advisory body that costs money. Similarly, there is talk of merging the African Court of Justice and the current African Court of Human and Peoples’ Rights. Other reforms include the need to better connect the AU to the African population, specifically women and youth. You can see that these are grandiose projects that require time, patience, passion. They require that all African states make concessions on their sovereignty in order to be able to implement this reform project.
ST: What is your point of view on gender in Africa and in particular on the accession of women to leadership positions?
HG: It will take an entire conference to discuss this very important issue. Women in Africa are an enormous force, not only at the decision-making level but also in all areas, without exception. The consideration of women, of parity, in leadership positions within the AU is mandatory. For example, of the six Commissioners, four are women. If you look carefully at the composition of all the organs, including the African Court, there is a majority of women, including in my Commission (AUCIL). When I arrived there in 2015, there were only two women. Today there are six. Now the President and Vice-President of the AUCIL are women, for the first time since the creation of our body. The Deputy Chairperson of the African Union Commission is a woman. There was a woman at the head of the Banjul Commission. In some African countries like Tanzania, a woman is the president. In my country Tunisia, it is a woman who is at the head of the government. I think it is an example to be followed throughout the African continent. Rwanda is one of the few countries in the world where there are more women than men in Parliament. There is a real change in mentalities, to recognize leadership positions for African women and I think we are on the right track.
ST: What is the role of the African Union Commission on International Law (AUCIL)?
HG: The AUCIL , created in 2009, is made up of eleven (11) members elected and appointed by the deliberative organs of the African Union and possessing recognized competence in matters of international law, nationals of Member States and who perform their duties in their personal quality. The composition of our body reflects and respects the principles of equitable regional geographical representation, representation of the different legal systems of the continent and equitable representation of both sexes.
The objectives of the AUCIL , as reflected in Article 4 of its Statute, are to undertake activities relating to the codification and progressive development of international law on the African Continent, with particular emphasis on the laws of Union as contained in the Treaties of the Union, in the decisions of the deliberative organs of the Union and in African customary international law emerging from the practice of Member States ; propose draft framework agreements, draft model laws, formulations and analyzes of trends emerging from the practice of member states to facilitate the codification and progressive development of international law; assist in the revision of existing treaties, help identify areas where new treaties are required and develop draft texts relating thereto; to carry out studies on legal questions of interest to the Union and its Member States ; and to encourage the teaching, study, publication and dissemination of works on international law, in particular the laws of the Union with a view to promoting the acceptance of and observance of the principles of international law, the settlement peace of conflict, respect for the Union and recourse to its organs, as necessary.
Of course, the AUCIL is a young institution that is very little known, compared to the International Law Commission which operates at a universal level. However, during its young career, the AUCIL has already contributed and continues to contribute to the codification and progressive development of international law within the framework of the African Union.
Indeed, the AUCIL has finalized a number of studies, some of which are particularly important for the subject under discussion today. These include studies on the legal basis for reparations for transatlantic slavery and other damage to the African continent; revision of OAU/ AU treaties ; and ratification of OAU/ AU treaties , harmonization of ratification procedures and acceleration of ratification.
Other studies are in progress and entrusted to special rapporteurs. These studies focus in particular on international environmental law, the African Convention against Slavery; the Draft Model Hemispheric Convention on the Avoidance of Double Taxation; the Draft African Convention on Judicial Cooperation and Mutual Assistance in Criminal Matters and on Extradition; study on maritime piracy in Africa; the delimitation and demarcation of borders in Africa; the vision of the mining industry in Africa immunity under international law; Study on the prohibition of intervention in international law; draft model law for the domestication of the African Charter on the Rights and Welfare of the Child; draft model law on the domestication of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; Recommendations on the teaching, study and dissemination of international law, etc.
Unfortunately, we are a very little-known organization that is only ten years old. We have no budget. We do our work without a budget. We meet in session once a year. It’s not much. In any case, we cultivate the hope that there will be a future change within the framework of the reform of the organs. We continue to defend and promote our body and the missions assigned to it and we want to have the means to achieve our ambitions. We are elected members, we have a vocation, we have goals, we work hard on them and all the commissioners are very committed.
ST: The year 2023 will mark the end of the first decade of the implementation of the AU Agenda 2063 . Can we admit that the official start in January 2021 of free trade within the framework of the African Continental Free Trade Area (AfCFTA) is the main achievement of this first decade?
HG: Without doubt! But are we ready for the free movement of goods and people? I do not think so. All of this requires real political will. Security issues must be properly addressed, because there can be no free trade without security. You have to think about infrastructure. We do not have the necessary infrastructure to go from one capital to another within the African continent. We must also work so that all African states are on the same wavelength. There are very rich countries, but there are also very poor countries. And to speak precisely of a continental free trade area, I think that it will be necessary to ensure that we can strengthen and consolidate all that is industry, modern technologies for the various States of Africa.
ST: How should Africa position itself in the face of the reorganization of the international scene? In this sense and far from any emotion, does not the speech of the interim Prime Minister of Mali, Colonel Abdoulaye Maïga , restore hope to the dream of an independent Africa defended by the Libyan guide Muammar AL -KAFHAFI until to his assassination?
HG: Very good question. The world moves a lot, very quickly even. I read the comments on the digital platforms of people who had listened to the speech of the Prime Minister of Mali. It is a speech that will go down in the annals of the UN and which honors not only the Malian people, but also all the African peoples because we need this type of speech where Africans say no to interference. It is truly an act of bravery and courage that opens up promising prospects. Africa must take its destiny into its own hands. She has all the means.
ST: What future prospects for the AU and the African continent?
HG: The AU , twenty years later, there are things that have been done, but there are plenty of things that remain to be done. In twenty years, there must be a radical change in this political class which has remained very selfish. It will really be necessary to ensure that Africa is imbued with common objectives, a dream that unites us all, a proven solidarity. It is necessary to go to the conquest of our ideals with much more passion and ardor. Together, we can move forward. We are a force in itself. Africa does not need to wait for financial and budgetary aid from donors. We have it all. We must increase meetings, dialogues, cultivate a common solidarity and a desire to live together, to stop slaughtering us and making arguments that drag us down. It is at this price that we will give meaning for the years to come to this beautiful institutional architecture which is called the African Union.
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Steve TAMETONG is the Deputy Director of Democracy and Governance Division at the Nkafu Policy Institute of the Denis & Lenora Foundation. He holds a Ph.D. in Public Law from Dschang University. He also holds a Ph.D. in Governance and Regional Integration from the Institute of Governance, Humanities and Social Sciences of the Pan-African University (African Union).