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The Organs of the African Union along with Their Respective Mandates and Modes of Operation
The Assembly is the ‘supreme organ of the African Union’ composed of Heads of States and Governments. It meets once in a year in ordinary session, and it can meet in extraordinary session at the request of any member state that has to be approved by a two-third majority of the member states. The Assembly shall be chaired by a Head of State or Government from among the member states who is elected based on consultations among the member states. The chairman shall remain in the position for a period of one year.
Powers and Functions of the Assembly
As regards to the powers and functions of the Assembly, Article 9 of the Constitutive Act of the African Union lists down the mandates that the Assembly has by virtue of the agreements of the member states as expressed in the Constitutive Act, which is a manifestation of their common volition.
Powers and Functions of the Assembly
- The functions of the Assembly shall be to:
- determine the common policies of the Union;
- receive, consider and take decisions on reports and recommendations from other organs of the Union;
- consider requests for membership to the Union;
- establish any organ of the Union;
- monitor the implementation of policies and decisions of the of the Union as well ensure compliance by all member states;
- Adopt the budget of the Union;
- give directives to the Executive Council on the management of conflicts, war and other emergency situations and the restoration of peace;
- Appoint and terminate the appointment of judges of the Court of Justice;
- Appoint the Chairman of the Commission and his or her deputy or deputies and Commissioners of the Commission and determine their functions and terms of office.
- The Assembly may delegate any of its powers and functions to any organ of the Union.
Being the supreme organ of the Union, the Assembly has a final say over important matters mentioned above. It has a multifaceted character mandates. It could be said that most of them display the supreme character of the Assembly. The Assembly of the Union may be equated to the General Assembly of the United Nations. It has the ultimate power in determining the destiny of the organization itself.
As a high ranking organ of the Union, the Assembly’s powers and functions are the manifestations of the fact that the Union is a forum of cooperation among between African states that is to be guided by the common understanding of the Heads of States and Governments of its member states. The destiny of the organization is to be determined by the decisions that the Assembly makes. The powers and functions it has may, though obliquely, be equated to the mandates of the legislative organ in a domestic set up.
It has to be recalled that the Assembly is not a grouping of experts that could be indulged in specific operational matters of the Union. Rather, it sets the boundary of the Union’s functioning and authorizes those who have professional expertise in the area. It is for this reason that the Executive Council is answerable to the Assembly. The Executive Council supervises the functioning of the Specialized Technical Committees, and accordingly monitors the policy guidelines adopted by the Assembly.
It may be said that most of the functions of the Assembly are self-explanatory. To exemplify one of its power and functions, the Assembly is mandated to establish any organ of the Union. It is a bare fact that Article 5(1) of the Constitutive Act of the Union has already listed down organs of the Union. However, the framers of the Act cannot foresee the future in its full-fledged manner and determine an exhaustive and all-embracing list of organs that can remain forever. The order of the day may demand the abolition of one organ and the creation of another. In connection with this, the Trusteeship Council of the United Nations might be taken as an appropriate example. The mandates of this Council may be said to be outdated by now. That is why there are scholarly recommendations to establish a council on terrorism in this place.
The framers of the African Union Constitutive Act were capable of paying due attention to the aforementioned scenario. That is way Article 5(2) of the Act provides on open-ended statement. The organs of the Union, as listed in Article 5(1), are not exhaustive. If it deems necessary, the Assembly may decide to establish other organs of the Union. In the same fashion, Article 9(1) names the power to establish any organ of the Union as one of the functions of the Assembly. An appropriate example in this regard would be the decision of the Assembly to establish the Peace and Security Council of the African Union. This organ was not part of the organs of the Union as stipulated in the Constitutive Act. However, the order of the day and the emerging consensus among African states demanded its creation. Hence, the Assembly heralds the creation of the Peace and Security Council as an independent organ of the African Union.
The mandates of the Assembly to establish a new organ of the Union is specified in black and white manner. At this juncture, let’s pose a question whether the Assembly can disestablish any of the organs of the Union as enumerated in the Constitutive Act. A contrary reading of Article 9(1) (d) might bring an affirmative response to the issue at hand. If the Assembly is mandated to create a new organ, what can propel it from abolishing an existing one? However, for practical reasons, it doesn’t seem realistic for the Assembly to do so. It may rather substitute an existing organ with another only in so far as it can further the objectives of the Union in a simplified manner. A notable example in this regard would be the Assembly’s decision to merge the Court of Justice of the African Union [which is an organ of the African Union as per the Constitutive Act] with the African Court of Human and Peoples’ Rights and create a new organ of the Union named the African Court of Justice and Human Rights. Generally, it may be concluded that, as an ultimate decision making organ of the Union, the Assembly may do so when it deems necessary. However, most organs of the African Union look like to have an indispensable character for the Union to pursue its objectives. Therefore, one may not reasonably expect a total abolition of any of the specified organs. Rather, it would be reasonable to expect a measure of reorganization when the circumstances of the case demand it.
The Mode of Operation of the Assembly
Concerning the decision making process within the Assembly of the Union, the Constitutive Act authorizes the Assembly to adopt its own detailed Rules of Procedure. Accordingly, the Assembly has adopted its own Rules of Procedure as of July, 2002. A detailed explanation of the contents of the same might be a verbose attempt as most of the provisions of the Rules of Procedure are either reiteration of what has been provided in the Constitutive Act or too detail and routine to be discussed separately. Therefore this material focused on highlighting the major tenets of the said instrument. Students are hereby required to make personal readings of the instrument to have a full-fledged understanding of it.
The Assembly shall conduct its session at least once in a year on an ordinary basis. It may also conduct an extraordinary session provided that a member state or the Chairperson of the Union requested so and the request is approved by a two-third majority of the member states. Unless a member state requests to host the sessions of the Assembly, it shall be held at the headquarters of the Union, Addis Ababa, Ethiopia. But in any case, the Assembly is bound to make a session in Addis Ababa at least every other year.
A state that pledges to host the meetings of the Assembly shall be duty bound to bear all extra-expenses incurred by the Commission due to the change of Venue. Apart from that, the said state shall comply with adequate logistical facilities and a favorable political atmosphere. In cases where two or more member states offer to host a session, the Assembly shall decide on the venue by simple majority. In any meeting of the Assembly, two-thirds of the total membership of the Union shall constitute a forum.
Rule 8 of the Rules of Procedure of the Assembly provides the following with regard to how agenda of Ordinary Sessions of the Assembly are going to be singled out:
- The Assembly shall adopt its Agenda at the opening of each session.
- The Provisional Agenda of an ordinary session shall be drawn by the Executive Council and shall comprise the following:
- Items which the Assembly decides to place on its agenda;
- Items proposed by Executive Council;
- Items proposed by the other organs of the Union that do not report directly to the Executive Council;
- Items proposed by a Member State Provided that the proposal is submitted sixty (60) days before the opening of the session and the supporting document(s) and draft decision(s) has been communicated to the Chairperson of the Commission at least thirty (30) days before the opening of meeting.
3. The provisional Agenda shall be divided into two parts as follows:
Part A: Items for adoption without discussion are those on which the Executive Council has reached agreement and for which their approval by the Assembly is possible without discussion;
Part B: Items for discussion are those on which agreement has not been reached by the Executive Council, requiring debate before approval by the Assembly.
It is as well possible for a Member State to raise other agenda items, which shall only be for information but not subject to debate or decision. As regards to the agenda of extra ordinary sessions, it shall comprise only the item(s) submitted for consideration an the request for convening the session
Concerning the manner of conducing the sessions, unless the Assembly decides other wise by simple majority, all sessions of the Assembly shall be closed. Arabic, English, French, Portuguese, Spanish, Kiswahili and any other African language shall be the working languages of the Assembly.
With respect to the decision making process of the Assembly, Rules 18-35 of its Rules of Procedure govern the details. Not all member states of the Assembly may always have a voting right on the decisions of the Assembly. A member state may be sanctioned not to exercise its voting rights as per Article 23(1) of the Constitutive Act due to its failure to make the appropriate payment of its contribution to the budget of the Union. A state may as well be suspended due to an unconstitutional change of government. Except in the cases of these exceptional circumstances, each member state shall have one (1) vote.
Under normal circumstances, the Assembly is expected to take its decisions by consensus. In cases where unanimity is not possible, the Assembly shall take questions of procedure by a simple majority and other decisions by a two-thirds majority of the member states eligible to vote. Sometimes it may be debatable as to whether a certain question is a question of procedure or not. In such cases, the Assembly shall decide on it by a simple majority. While voting on procedural matters, states may follow any method as may be determined by the Assembly whereas on substantive issues voting shall be made by secret ballot.
While deliberating on issues of discussion, a member state may raise a point of order over which the Chairperson shall immediately decide. While raising a point of order, no one can speak on the substance of the issue being discussed. If the member state that raised the point of order is aggrieved by the decision of the Chairperson, the Assembly shall decide on the matter by a simple majority.
The Assembly may take its decisions in three different forms. The first form of decision is that of Regulations which are meant to be applicable and binding on member states, organs of the Union and the Regional Economic Communities. These entities are under obligation to take all the necessary measures to implement the Assembly’s Regulations.
Another form which the decision of the Assembly may take is Directives. Similar to that of Regulations, the Directives of the Assembly are binding on the three different categories of entities mentioned above. What makes them distinct from Regulations is that they give discretionary power for national authorities so as to determine the form and the means used for the implementation of the same depending on their peculiar surroundings.
Recommendations, declarations, resolutions, and opinions, etc are another category of the forms of the decisions of the Assembly. These kinds of decisions are not binding. They are basically targeted at guiding and harmonizing the viewpoints of the member states.
Whatever forms a decision of the Assembly may take; it will be authenticated by the signature of the Chairperson of the Assembly and the Chairperson of the Commission. Next to that, they have to be published in all the working languages of the Union in the ‘Official Journal of the African Union’ within fifteen days after the signature and shall be transmitted to member states, other organs of the Union and the Regional Economic Communities. Unless the decision of the Assembly ordains otherwise, Regulations and Directives shall be automatically enforceable with in thirty (30) days after the date of the publication in the Official Journal of the African Union.
The Assembly is mandated to sanction a member state that fails, without good and reasonable cause, to comply with the binding decisions and policies of the Union. In such instances, the Assembly shall stipulate the timeframe for compliance with the decision. Should a state fail to observe the stipulated timeframes, the Assembly may impose sanctions in accordance with Article 23(2) of the Constitutive Act of the African Union. The sanctions to be imposed may include denial of transportation and communication links with other member states and other measures of political and economic nature to be determined by the Assembly.
Condemnation and rejection of unconstitutional changes of governments is one of the sixteen cardinal principles of the African Union. In pursuance of this principle, Article 30 of the Constitute Act provides that governments which shall come to power via unconstitutional means shall be suspended from participating in the activities of the Union.
Condemnation of unconstitutional change of government by the Union is a decision of paramount importance in Africa where such things are not uncommon. The procedure to be followed in such instances is stipulated in Rule 37 of the Rules of Procedure of the Assembly. The rule contains six procedures to be followed in order to impose sanctions for the said cases. Below is the text of Rule 37:
Sanction for Unconstitutional Changes of Government
- Pursuant to Article 30 of the Constitutive Act, the member states in which Governments accede to power by unconstitutional means shall be suspended and shall not participate in the activities of the Union.
- in conformity with the Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government, the situations to be considered as unconstitutional change shall be, among others:
- Military and other coup d’etat against a democratically elected government;
- Intervention by mercenaries to replace a democratically elected government;
- Replacement of democratically elected governments by armed dissident groups and rebel movements; and
- Refusal by an incumbent government to relinquish power to the winning party after a free and fair election.
- The overthrow and replacement of a democratically elected government by elements assisted by mercenaries shall also be considered as an unconstitutional change of government.
- whenever an unconstitutional change of government takes place, the Chairperson of the Assembly and the Chairperson of the Commission shall;
- immediately, on behalf of the Union, condemn such a change and urge the speedy return to constitutional order;
- Convey a clear and unequivocal warning that such an illegal change shall not be tolerated or recognized by the Union.
- Ensure consistency of action at the bilateral, interstate, sub-regional and international levels;
- Request the PSC (Peace and Security Council of the African Union) to convene in order to discuss the matter;
- Immediately suspend the member state from the Union and from participating in the organs of the Union, provided that exclusion from participating in the organs of the Union shall not affect the state’s membership of the Union and its obligations towards the Union.
- The Assembly shall immediately apply sanctions against the regime that refuses to restore constitutional order, including but not limited to:
- Visa denials for the perpetrators of the unconstitutional change;
- Restriction of government to government contacts;
- Trade restrictions;
- The sanctions provided for in Article 23(2) of the Constitutive Act and in these Rules;
- Any additional sanction as may be recommended by the PSC (Peace and Security Council).
- The Chairperson of the Commission in consultation with the Chairperson of the Assembly shall;