|SOVEREIGN RIGHTS OF CONSTITUENT STATES & COMMUNITIES
UNDERSTANDING AFRICA'S SOVEREIGNTY CLAUSES
It is necessary to clarify the concept of sovereignty in the African context, for purposes of the future legal system and relations between the Union and constituent African states and communities. Set out below is a definition of sovereignty, followed by a discussion of inherent community powers, and the relationship of sovereign communities with the states and the African Union.
Sovereignty is the responsibility to protect. It refers to the authority, or sense of entitlement, deriving from the right of people to protect themselves, either individually or by seeking the safety of numbers. The proper function of a sovereign entity is protection and preservation of life of its citizens.
A community/state is a group with thriving social, political and cultural institutions. Each community or state exercises the inherent powers of a sovereign nation. African states recognize the sovereignty of one another by forming compacts, treaties. Military alliances are nolonger to exist and will be abolished because African states will pool their sovereignty.
As a result of unification, each state will gain some forms of sovereignty and lose other forms of sovereignty. The trade off will be beneficial to the overall long term sovereignty of all the states. States and communities do not derive any of their inherent powers from the African Union, and their sovereignty does not depend upon any African Union constitutional provision. Rather, sovereignty is the supreme inherent power of an African community or people or nation. Sovereignty predates the colonial occupation, it predates the state system inherited from the Berlin West Africa Conference of 1885.
African communities (tribes, clans) possess powers of inherent sovereignty that arise from the communities' status as independent nations before and at the time of colonial conquest and occupation.
Sovereignty is defined as the supreme, absolute, and uncontrollable power by which any independent community is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent; the "supreme and independent power or authority in government as possessed or claimed by a state or community."
In the ideal sense, sovereignty means the absolute power of a people to govern themselves, free from interference by other sovereign nations. A sovereign nation is a distinct political entity that has power over a specific geographical area. As a practical matter, however, no nation in the world today is completely independent. Economic and political factors also encourage and necessitate governmental interdependency.
The most basic principles of African law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which are lawfully vested in an African community/nation/tribe are not, in general, delegated powers granted by express acts of the government of unification, but rather are inherent powers of a limited sovereignty which has never been extinguished. Each African community begins its relationship with the African Union as a sovereign power, recognized as such in treaty and legislation.
Constituent states/nations/communities are independent sovereigns, as distinguished from voluntary associations. Constituent African nations after unification are sovereignties composed of at least four distinct and interwoven attributes: a secure land base, a functioning economy, self-government and cultural vitality. The nations' continued existence and autonomy depends upon maintaining all four attributes of sovereignty. This is the extent of the sovereign rights of a given state of community.
COMMUNITY LAND BASE
A community land base is crucial to a nation's sovereignty. The role or meaning of the land is very different to African nations than it is to Aphaean (non-African) society. To understand African sovereignty and its practical implications, one must understand the significance of the African land base. It is also extremely important to understand these concepts when addressing actions taken by the future African Union or by individuals that may adversely affect community land and its natural resources. The community territory forms the geographical limits of the community's jurisdiction, supports a resident population, is the basis of the community's economy, and provides an irreplaceable forum for religious practices and cultural traditions that are often based upon the sacredness of the land.
Although the sizes and ownership patterns of Africans communities vary greatly, fundamental priorities are implicit in maintaining sovereignty through African land tenure. Maintaining a homeland in which both present and future generations of a community (tribe) may live--intergenerational habitational--is a dominant feature of national/community integrity and sovereignty.
Community existence also is often intensely dependent on land; many societies still rely on the natural resources found on the land for their survival. Lastly, community lands are irreplaceable- sacred land cannot be readily exchanged.
The attachment that African people have to their homelands is the foundation of sovereignty. Africans must have rights to their lands and traditional way of life. The land is their ancestral home. There, they, their children, and their forebears were born. They have their memories and their loves. Those lands may not be bought or the cultural heritage exchanged for money.
CONSTITUENT STATE ECONOMIES
The inclusion of states into the African Union economy allows states, nations and communitiues to thrive as sovereign nations. States, as sovereign governments, have the power to tax. Natural resources are developed, leased and managed in the states, and communities. Each consttuent state must determine what economy-producing activities are appropriate without a sacrifice of other values essential to sovereignty, which in many cases, already have been sacrificed because of the recurrent refugee crises.
Since constituent national/community status does not depend upon the African Union, community governments must not bound by adverse constitutional provisions that may apply to the formation, existence or dissolution of constituent Neocolonial Republics. Thus, each has the sole right to regulate its own internal affairs. In otherwords, whereas it is possible to divide country to form two states, or to decree the creation of districts, it is not possible for the African Union to take actions that will create a tribe, or divide a tribe into two sections, nor rename a tribe, or forcibly relocate them, alter their culture and customs, etc...
No authority of any kind may set out to impose rules that will adversely effect a sovereign people. Any such changes must be brought about by the internal logic and decisions of the traditional structures of authority within these groups. Thus if a community is made of nomads...no state may forcibly make them sedentary...but instead will try to the atmost to support the decision of the group arrived at using the normal traditional procedures usually in use in that group.
One of the most basic powers of a sovereign people is the power to select their form of government. Determining the form of government means the right to define the powers and duties of governmental officers, the right to determine whether acts done in the name of the government are authoritative, and the right to define the manner in which governmental officers are selected and removed.
The type of government and how it functions does not affect a nation's sovereignty. Responsibilities of sovereign governments are three-fold.
The community government must:
(1) have the ability to govern its members as well as membership,
(2) have control over a distinct geographical territory (except for nomads),
(3) be able to exercise exclusions of competing sovereigns within group territory.
These rules also apply to Constituent Republics of the African Union. For example after unification, the government of Senegal will still not have the power to regulate taxes in Kenya of vice versa.
Power to Govern Membership and Members
The community right of self-governance includes the power to determine membership. Communities may establish standards for membership by custom, historical practice, written law or agreements between African nations. Community governments also establish procedures for abandonment of membership, adoption of non-Africans and adoption from other communities.
As sovereign governments, Constituent Republics, States and communities generally have the power to maintain law and order by:
(1) enacting laws governing the conduct of people within state boundaries;
(2) establishing enforcement bodies such as police forces and courts to administer justice;
(3) regulating activities in the state such as hunting, fishing and gathering, as well as domestic relations of its members, property use, environmental affairs, and commerce and trade within the state.
Traditional sovereign communities and Constituent Republics, states and municipalities have the power to tax activities and commerce in their territories. The guidelines for such taxing may be regulated by the courts in case of dispute.
Most states in Africa will choose to exercise these powers. Importantly, these rights and powers of African communities are retained unless they have been given up by the state pursuant to an agreement, treaty or state constitutional provision, or limited by an act of the African Union.
Before the colonial occupation, a nations' inherent authority to exercise jurisdiction throughout its land was complete.
Generally, constituent states have the inherent right to exercise civil jurisdiction within the geographical area they control. This civil jurisdiction includes the right to govern people within the bounds of the state, although the African Union will have limited civil jurisdiction within an state. Criminal jurisdiction in a state, however, is governed by four principles governing criminal jurisdiction in Africa:
States have the inherent right to exercise criminal jurisdiction over people in the state. However, the African Court of Justice has the power to overturn a conviction under certain rules to be determined.
The African Union may limit or abolish state criminal jurisdiction, under certain circunstances. For example if the matter concerns severe human rights violations, or actions by soldiers of the All-Union army, or if an action may lead to a dispute between states.
The African Union has jurisdiction over any crimes committed in the states unless the Pan African Parliamnent has expressly granted states that power.
In order to avoid confusion over African Union jurisdiction over activities in a state, on the part of the regulated community, jurisdictional disputes between the regulators are resolved by the decision of the Pan African Parliament.
Power to Govern Geographical Territory
State governance also has a territorial component. The land base provides a place of habitation for present and future generations of a community, marks the jurisdiction within which a community government operates, supplies the reservation economy, and provides a sacred place for time-honored traditions that are crucial to the survival of culture. Thus, a distinct community/tribal territory within which a state may govern remains essential to fulfilling the promise of sovereignty.
Power to Exclude Competing Sovereigns
The third component of tribal self-governance is the exclusion of competing governments, within the territory of a reservation. This exclusion generally applies to states but may also include the power to exclude the government of unity from certain matters. Generally, constituent state authority operates to curtail the reach of one states laws within the borders of another state.
Most African society, regardless of specific affiliations, follows a holistic approach to life. That is, facets of life that generally are compartmentalized in colonial society--government, economics, religion--are interconnected in African culture. This approach guides the African government, economy and dependent relationship on the land. Many "rights" that African seek to maintain, such as cultural practices, are activities and beliefs that simply are a part of daily life.
A loss of culture is often the primary indication of the erosion of a nation's sovereignty. When a society becomes assimilated into another, such as historically occurred with African nations, defining cultural characteristics are lost. Language, customs, religion, dress and beliefs are cultural attributes that are crucial to the survival of any society or sovereign nation. Africans maintain, therefore, that cultural vitality is essential to the sovereignty of African nations.