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March 10, 2004
The AU is a State, not an Intergovernmental Organization
By Dan Kashagama

It has taken Africans too long and cost us too many lives to preserve our sense of nationhood and our rights as a people. We are the Africans. The petty fiefdoms of neocolonial states and their international manipulations must not be used as an excuse to pursue an agenda of keeping Africa down. Do we now have to shed more blood and lives to prove that we are in fact a Union and that the AU is not merely an intergovernmental organization? When the Pan African Parliament finally starts to function, are they going to have to depend on a bureaucracy that does not understand the existence of the people’s African Union, but would rather see the AU merely as an intergovernmental organization?

Why then is it that in spite of the language of numerous treaties and the overwhelming case for AU having the personality of a unitary state (or at the very least a federation), the AU Commission’s website, and the commission’s officials still give the impression that the AU is merely an intergovernmental organization no different in status to the Red Cross or the UN? Why does the Commission in fact speak of itself as if it is the entire Union? The AU Commission website appears as the website of the AU entirely.

The national all-African character of the Union, and the integrity of the Pan African Parliament as a popular institution above the power of the states, face a threat in the AU Commission's media organs. The Commission's website is misleading in its characterization of its own implied privileges and powers. By continually referring to the AU in terms that imply that the entire AU is an intergovernmental organization, the Commission is undermining Pan Africanism. The only benign explanation for the misinformation (and I find it hard to believe that they are ignorant of the damage they are causing), is that they assumed that the AU identity is analogous to the UN.

However, if this is the reason they have for diminishing the image of the AU, I wish to remind them that the 1946 UN Charter did institute a union of states. This placed the UN in a very general category to which, albeit to qualitatively different extents, both the confederation and the federal states also belong. In other words, in international law the AU has default claim to statehood, if something as loosely formed as the UN had such a right at its formation. The default status of the UN prompted the US to insist on amendments and additional clauses to the charter stipulating that the UN had no intentions to act as if it was a federal state. Similarly a disinterested observer should conclude that in fact the AU is a federal state.

The UN disavowed any pretensions to statehood in 1949 at the San Francisco Convention, by clearly acceding in its charter that it was to deal only with governments, after protests, and a lawsuit by the US state department. In the 1940s and 50s the UN was attacked by the media and religious organizations as a blatant, and unwelcome, attempt at creating a world government. Secretary of State Foster Dulles had to take the UN to court to ensure that it should never get recognition as a unitary state, or a federation or a confederated. In other words international law recognized statehood as the default position of the central acts of the UN charter, even if in fact union was not the original intention of the drafters of the UN charter.

The Constitutive Act of the African Union obviously goes beyond the language of the UN charter, so that the AU is clearly a state in conventional and legal terms. Just by virtue of the fact that the language of its formation overstates the case for unity, the AU is clearly different from both the UN and the EU. Moreover, the Union Act is explicit about the fact that it aims to go beyond being merely being an intergovernmental organization. It is in this context that we can talk about the need to create a Parliament elected by universal suffrage. The failure to grasp the true powers implied by the Union Act, and to persist in misdefining it as merely an intergovernmental organization, is bound to cause a succession of half-measures and superfluous treaties between African states in the future, a process that is fraught with waste and danger.

Another analogous body to consider in defining the AU is the Arab League. During the formation process in Damascus, the delegates debated long and hard, and then explicitly rejected the use of the terms Union and Federation, for fear of creating the impression that they were forming a new united state out of the various Arab states. They settled on the term League, and went further in making clear that the Secretary General of the League was not a head of state, but rather that he was to have the rank of ambassador, in order not appear like a head of state. The League treaty also allowed for League members to pursue bilateral relations among themselves separately from and outside of the League.

In comparison to the Arab League, the AU on the other hand, was explicitly a Union, which goes beyond a confederation or club of nations, or mere alliance. In 1979, the OAU in fact went so far as to amend the charter in order to recognize the General Secretary as having the title, right and privileges of a Head of State, not merely and administrator with the rank of ambassador. The Abuja Treaty of 1981 added to the consolidation of the federal status even further by detailing how unity, integration and harmonization of all policies was to be pursued by creating first the African Community, and then ultimately the Union. In other words, member states of the AU are not to pursue separate foreign policies, the war-making powers are held collectively, sovereignty is shared, and all officials of all the states are collectively answerable to all the Africans.

That collective accountability to the people is lacking in the attitude of some officials currently charged with promoting African unity. They have no respect for the treaties, or do not understand the mission to which they have been assigned. Many have taken it upon themselves to continually refer to the AU as an intergovernmental organ, and not as a Union of States. If one had called the OAU secretariat a few years a go, you would not have expected for the phone answer to be “hello, this is the African Community, can I help you?” Yet in fact from time to time now, you get a voice at the other end saying “AU” instead of “AU Commission”, making it seem that the Union and the Commission are one and the same.

None of the other institutions of the AU define themselves as the AU, any more than if you called the US state department, you wouldn’t expect the person at the end of the line to answer, “this is the United States”. The AU commission’s employees have not been required to think of the AU as separate entity from the AU commission. Yet the Union Act is clear about this. The Commission is only one of the institutions of the AU.

It is important for officials in contact with the public to understand and to promote the AU. To understand the status of the AU we need to go further back in time, to the formation of the Pan African movement, to understand the intent of the founders of the movement. Did they in fact intend for the AU to be merely an intergovernmental organization. Or did they mean to create a “Republic of Africa” encompassing the entire land, and all people, not just officials of state governments.

The concept of a continental republic as a natural formation is not unreasonable to conceive. Prior to 1885, Africa was generally thought of as one country, and certainly as one land, despite local cultural diversity. It did not flow naturally into the thought of many people at that time to imagine 54 states in the place of one African state, however chaotic. The pre-colonial states of Morocco, Egypt and Abyssinia, saw foreign interference in Africa as a concern, and recognized their own attempts to unify Africa as legitimate aims of their indigenous or adoptive monarchies. Even the arch colonialists like Cecil Rhodes, thought of Africa as a natural political, social and economic entity.

To Pan Africanists, an intergovernmental organization is no sustitute for a unitary state or a federation. UNIA, the most important Pan African movement in modern history, went so far as to declare Marcus Garvey the first Provisional President of Africa. Du Bois, born in 1868, was an educated and interested young adult when Africa was carved into pieces and occupied by foreign powers. He detested this so much that he spent his entire life devising a strategy to reverse the fragmentation. He is the most important advocate for African unification. He lived long enough to see the inauguration of the abortive Union of African States, and the OAU. He did not struggle merely in order to create an intergovernmental organization (however glorious), neither did Haile Selassie, and certainly not Nkrumah, Babu, or Lumumba, men who gave there lives for the survival of African unification, and ultimately the establishment of a single sovereign entity in the place of 50 odd states.

I would love for officials to stop referring to the AU Commission as if it was the totality of the AU. This constitutive Act of the African Union considers the people of the several states as one body corporate, and is intended as an original compact with the African people, not just the states. Clearly the Union Act is not the charter of the Commission exclusively, nor even substantially. The commission is only ONE of many institutions of the AU. The Union Act has no clause that would lead anyone to believe that the Commission and the AU are synonymous. So why the reluctance of the Commission website to be explicit and faithful to the language and intentions of the treaties? Why doesn’t the AU Commission website state explicitly that it is the site of the AU Commission, and not the website of the AU in its entirety?

The language employed by the Commission and some misguided African diplomats runs against generally accepted international conventions, and undermines the hard won gains of Pan African struggle. It is a rule in construing a law to consider the objects the framers had in view in passing it, and to give it such an explanation as to promote their intention. The Constitutive Act of the African Union, derives directly from the leaders of the Pan African movement, and acknowledges this in the preamble. The framers intended to make Africa more than an intergovernmental organization. At the very least, the Commission should respect this.

Even if the intergovernmental structure were a legitimate interpretation (and it is not legitimate) of the Union Act, African Unity cannot be thoughtlessly subjected to limitations under any conventions. The intergovernmental character the Commission has adopted for the AU is highly questionable. The international conventions now current do not have a final say in the matter of defining what constitutes the African Union. They simply used existing customary rules, to which Africans are not automatically bound regardless of consequences.

In other words, there is no legal basis for seeking and promoting the legitimacy of an Africa consisting of states that are not part of a political union, but are merely members of an intergovernmental organization. Whose mission is it, under African customary law and historic precedent, to abet the continuing fragmentation of African sovereignty? If we are dissatisfied with intergovermentality, and we are, then we demand unification, and since the treaties can be read in such a way as to confirm federation, then we are a Union!

The OAU was has finally overcome its retarded image, by evolving into the Commission for the purpose of servicing the African Union. Yet in its bureaucratic inertia, the former machinery of the OAU is unwilling to acknowledge the new reality. The AU is a union of states with legal privileges in international law and has to be treated as such in order to overcome the appearance of an intergovernmental organization.

The AU has evolved out of numerous efforts to unify Africa and deserves recognition as a Union, in the same way that the US or Canada or India are Unions, and not merely as an institute analogous to the World Health Organization or the Red Cross. There is the substantive distinction in international law between the AU and the AU commission. So please, dear bureaucrats and diplomats, stop confusing the people!!!

As a consequence of the confusion over the meaning of the AU, we are faced with an institution that does not recognize the existence and legal nature of a Union of states to which it is subordinate. This state of affairs is unacceptable.