Africa is a continent where conflict is rife. Peace and security is arguably absent in many African states and human rights are not protected. The responsibility for ensuring peace and stability lies with the African Union (AU), at least at the regional level. It is a good to reflect on the provisions within the AU in this regard.
Article 23 (1) of the Charter on Human and Peoples’ Rights (African Charter) provides that all peoples shall have the right to national and international peace and security. It may be argued that the use of “all peoples” suggests that an individual enjoys it in concert with others. The rights may be national and also international – that is, enjoyed beyond national borders. The enjoyment of individual rights must always take into account the rights of others. The enforcement of the right could be achieved through what is known as a communication procedure in terms of the African Charter: where a State fails to prevent, manage or resolve an internal or international conflict and also where States fail to ask for the AU’s intervention in terms of article 4 (j) of the AU Constitutive Act.
It must be noted that peace and security is an objective and a principle of the AU. Article 3 (f) of the AU Constitutive Act provides that one of the objectives of the AU shall be “to promote peace, security, and stability on the continent”. Article 4 (l) of the AU Constitutive Act provides that the AU shall function in accordance with peaceful coexistence of Member States and their right to live in peace and security. This may be in relation to one another or in relation to belligerents within a State. The enforcement of the right of an AU Member State to live in peace and security could be achieved through a process where the State undertakes measures in containing the conflict within its borders. This could also be through the State requesting the intervention of the AU. What is however unfortunate is that the right to peace and security as guaranteed by the African Charter is neither mentioned nor acknowledged in the AU Constitutive Act.
Article 5 (f) of the AU Constitutive Act (as amended) provides for the Peace and Security Council of the African Union (PSCAU) as one of its organs. It is established by the PSCAU Protocol/2003 and is composed of 15 members, which are not States as in the case of the United Nations Security Council. The PSCAU is a standing decision-making organ for the prevention, managements and resolution of conflicts, and also a collective and early warning arrangement, facilitating timely and efficient response to conflicts/crisis situations in Africa. The functions of the PSCAU include the following: the promotion of peace, security and stability in Africa; early warning and preventative diplomacy; peace making, including the use of good offices; mediation, conciliation and enquiry; peace support operations and intervention pursuant to art. 4 (h) and (j) of the Constitutive Act of the AU; peace-building and post-conflict reconstruction and action and disaster management.
The peace and security regime under the AU comprises of conflict prevention, conflict management and conflict resolution. In so far as conflict prevention is concerned, there is the Continental Early Warning System (CEWS), which is comprised of a Situation Room that collects & analyses data – based upon defined indicators. There are also observation and monitoring units of regional mechanisms, which collects, processes& transmits data to the Situation Room. The Chairperson of the AU Commission, who in turn advises the PSCAU on potential conflicts and threats to peace and security and recommends the best course of action, uses the information collected through the CEWS.
In so far as the conflict management, there is the African Standby Force (ASF), which is a multidisciplinary contingent (civil and military) and is meant to be a ready for rapid deployment at appropriate notice. The ASF is supposed to be trained on International Humanitarian Law and on International Human Rights Law, which disciplines are for their continental operations. The ASF is responsible for humanitarian action (under the control of the Chairperson of the AU Commission) and the PSCAU is responsible for the coordination of humanitarian action in Africa.
In so far as conflict resolution, the emphasis is on the cooperation between the PSCAU and the civil society. The PSCAU is responsible for assisting in peace building, restoration of the rule of law, the establishment & development of democratic institutions, the preparation, organization & supervision of elections, the implementation of policy aimed at improving the society and the overall reconstruction of African nations, especially coming from conflict situations.
Within the peace and security regime is the Panel of the Wise (POW), which is composed of five highly respected African personalities. These must have made outstanding contributions to the cause of peace, security and development in Africa. They must also have been involved mainly in the area of conflict prevention. The POW advises the PSCAU and the Chairperson of the AU Commission on issues pertaining to the promotion and maintenance of peace, security and stability in Africa. A close cooperation between the PSCAU and the African Commission is envisaged in this regard. As the African Commission’s mandate is to promote and protect human rights it stands to reason why it has to cooperate with the PSCAU whose mandate is to promote peace and security in Africa, which is a human right. The African Commission is mandated to bring to the attention of the PSCAU relevant information on peace and security. The African Commission is also mandated to bring to the attention of the AU Assembly (Heads of State) serious violations of human rights. The PSCAU and the African Commission are both answerable to the AU Assembly.
Article 4 (h) of the Constitutive Act of the AU (as amended) provides for the right of the AU to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances namely: war crimes, genocide and crimes against humanity as well as serious threats to legitimate order, to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council. The right of the AU to intervene does not violate the principle of non-interference. Only Member States (and not the AU) are prohibited from interfering in internal affairs of another.
Unconstitutional changes of government are a threat to Africa’s peace and security. As such Article 4 (p) of the Constitutive Act of the AU condemns and rejects unconstitutional changes of governments. Article 30 of the Constitutive Act of the AU provides that such governments shall not be allowed to participate in the activities of the AU. It must be noted that by implication those unconstitutional governments already in the AU remain untouched. The PSCAU is empowered under article 7 (g) of the PSCAU Protocol to institute sanctions whenever an unconstitutional change of government takes place. The AU Treaty implicitly gives the AU the right to intervene when an unconstitutional change of government takes place – i.e. if there is a serious threat to legitimate order.
The PSCAU Protocol requires the PSCAU to work closely with the Pan African Parliament (PAP). According to the PAP Protocol, one of the objectives of the PAP is to promote the principles of human rights and peace and security and stability. Article 18 (2) of the PSCAU Protocol requires the PSCAU to submit reports to the PAP (only when required). This is to enable the PAP to deliberate on issues relating to peace and security in Africa and to advise accordingly. In this way the participation of the African peoples (through their representatives) is assured.
In conclusion, the quest for peace and security in Africa remains a priority. Ensuring peace and security is in itself a means of protecting human rights. The AU’s peace and security regime is a step in the right direction – it displays maturity in the African leadership (though for now only on paper). The question is whether we should be optimistic that peace and security will now prevail in Africa? Not so fast! Let’s wait and see. Are there any prospects of the AU promoting and protecting human rights with the AU Member States acting on their commitments? The answer is yes. Ensuring peace and security is but one solution to the human rights problem in Africa. As the AU member states face numerous challenges, let these basics guide their thinking in ensuring peace and security in Africa and to save many Africans from the devastating situations in their respective countries.
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