In the Yaoundé Declaration, issued by the OAU Summit meeting in July 1996 in Cameroon, the Assembly of Heads of State and Government noted that:

"the total political liberation of the continent has just been achieved. This has been followed today by a transitional period characterised by the end of one-party rule, the inception of democratisation, the emergence of the state of law and the restructuring of our economies."

An important component of this future was the adoption of the Constitutive Act of the African Union on 11 July 2000 in Lomé, Togo.

Several years ago the OAU Summit set up a 14-member committee to review its Charter. By 1996, when the Yaoundé Declaration was issued, the Charter Review Committee had held six sessions and submitted, on an annual basis, a report to the OAU Summit. Not dissimilar to the impasse within which the United Nations finds itself, the review of the OAU Charter remained the captive of the competing national interests of any number of member states. For a number of important countries such as South Africa the initiative towards the establishment of the African Union provided a way out of this impasse. A further problem was the vision of a single federal African state that inspired Libyan leader, Colonel Muamar Al-Qadhafi. At the General Peoples Congress on 18 March 2001 in an address also carried on Libyan television, Al-Qadhafi would explain his position:

"in the coming years, there will be changes towards further African integration. Boundaries between African states will be scrapped. Armies, with their heavy burden on the national state, will be made redundant and replaced by one African defence force. Even passports and national identities will inevitably disappear. From now on, national differences will give way to a single African identity, with a single currency, one central bank, a single passport and a joint defence force."

Many African leaders do not share the vision of the Libyan leader, although most remain careful of criticising the holy grail of African unity.

Colonel Al-Qadhafi first made the proposal towards the establishment of an African Union during the Algiers Summit meeting of 1999. Subsequently, during September 1999 at an Extraordinary Summit meeting in Sirte, African leaders mandated the OAU foreign ministers to prepare a legal text for a proposed African Union and to submit it to the OAU’s next annual Summit meeting.

The first draft text provided for the African Union to coexist with the OAU and the African Economic Community (AEC), thus potentially adding to the number of African continental organisations rather than serving the purpose of rationalisation and consolidation. At a subsequent meeting with representatives and ambassadors in Addis Ababa during January 2000, the OAU Secretariat was tasked to provide for a new structure within which the African Union would replace both the OAU and the AEC. The Union was to be based on the OAU’s 1963 Charter and the 1991 Abuja Treaty (but accelerating the process of implementation defined in the treaty), which called for the establishment of an African Economic Community by 2025. The drafting process also succeeded in watering down the federal vision of Colonel Al-Qadhafi to a more realistic framework for continental integration, partly modelled on the European Union, despite vigorous resistance by the Libyan leader.

Article 3 of the Constitutive Act lists no less than 14 objectives, including a commitment to accelerate the political and socio-economic integration of the continent and to promote peace, security and stability on the continent. The list of 16 principles (article 4) contains an ambitious wish list including, for example, the establishment of a common defence policy for the African continent, the standard desire for respect of existing borders on the achievement of independence, and non-interference by any member state in the internal affairs of another. The organs of the Union are listed as the Assembly of Heads of State, the Executive Council of Foreign Ministers, the Pan-African Parliament (for which a protocol was recently adopted), the Court of Justice, the Commission (which will be the present OAU secretariat in Addis Ababa), the existing Permanent Representative Committee of Ambassadors in Addis Ababa, seven Specialised Technical Committees, the Economic, Social and Cultural Council and three financial institutions (the African Central Bank, the Monetary Fund and the Investment Bank).

Only the Assembly has the power to deal with issues regarding the management of conflicts, war and other emergency situations, and the restoration of peace. It may delegate any of its powers, however, to any other organ of the Union. The Assembly may also establish any organ of the Union, although it is unclear if this would include additional institutions apart from those listed in the Act itself. This is a crucial interpretation, since the major weakness of the Act is the absence of the political mechanisms to implement the Union Act and support its ambitious objectives.

For example, article 3 refers to both the Universal Declaration of Human Rights and the promotion and protection of human and people’s rights in accordance with the African Charter on Human and Peoples Rights, setting out as one of its objectives the promotion of democratic principles and institutions, popular participation and good governance. Article 4 also enshrines respect for democratic principles, human rights, the rule of law and good governance as a principle of the Union. Yet, the Act does not provide for the tools or mechanisms with which to implement, monitor or advance these lofty ideals. These, the first of many omissions, cannot be an act of amnesia. As part of the 1999 Algiers Declaration where Colonel Al-Qadhafi launched the Union initiative, the heads of state would reiterate their "commitment to the protection and promotion of human rights and fundamental freedoms … emphasise the indivisibility, universality and inter-dependence of all human rights, be they political and civil or economic, social and cultural, or even individual or collective … are convinced that the increase in, and expansion of the spaces for freedom and the establishment of democratic institutions that are representative of our peoples and receiving their active participation, would further contribute to the consolidation of modern African States underpinned by the rule of law, respect for the fundamental rights and freedoms of the citizens and the democratic management of public affairs."

A similar situation is evident in the sanctions imposed against governments that come to power through unconstitutional means in terms of the Act. The OAU had first taken a common position on military takeovers at its Harare Summit meeting in 1997 that followed the coup d’état in Sierra Leone. The issue was revitalised and expanded during the Algiers Summit meeting in 1999. The July 2000 Summit in Togo subsequently adopted an extensive declaration that set out the framework for OAU responses to unconstitutional changes of government. As a result, article 30 of the Constitutive Act of the African Union states that those governments that come to power in future through unconstitutional means shall not be allowed to participate in the activities of the Union. Obviously, the Act does not incorporate the extensive principles for democratic governance, the definitions of unconstitutional changes or the measures and actions that the OAU would progressively take in response to such development and the establishment of a Central Organ sanctions subcommittee to monitor compliance with decisions taken on situations of unconstitutional changes on a regular basis. Will the decisions of the OAU/AEC Summit automatically apply to the Union or does the establishment of the Union imply the consolidation of earlier decisions into protocols, procedures and rules?

Practically, the most important omissions from the Act are those related to the Cairo Declaration of 1993 and the subsequent establishment of the Central Mechanism for Conflict Prevention, Management and Resolution, the associated Conflict Management Division within the OAU Secretariat, and the Peace Fund.

Although the focus of the Mechanism is on conflict prevention, the OAU Central Organ has approved observer missions to Burundi (1993-1996), the Comores (1997-1999), and Ethiopia/Eritrea (2000 to present). The OAU has also established a group of neutral investigators in support of the July 1999 Lusaka Peace Accord in the Democratic Republic of Congo (1999 to present). Building on the perceived success of the Observer Missions in Burundi and Rwanda, the intention in each was to create a momentum towards a larger UN mission or, to indicate an African commitment in parallel to the UN. African leaders have also endorsed the use of election observers across the continent as common practice since 1990. Various forms of preventive diplomacy have also become common, including the use of the good offices of the Secretary-General, the despatch of eminent persons, special envoys and representatives, and others. Starved of resources and reflecting a continent ravaged by conflict, the OAU does better than many would admit, and the Mechanism and its Conflict Management Division have been central to this. This is a sentiment reaffirmed as part of the 1999 Algiers Declaration when the heads of state reiterated that "the OAU Mechanism for Conflict Prevention, Management and Resolution symbolises the concrete resolve of our continent to fully assume its responsibilities."

Yet, despite the contribution that the Mechanism and the OAU Conflict Management Division have made over the years, the Constitutive Act of the African Union makes no reference or provision for the Mechanism or indeed for the political means to implement the decisions that may be taken by the Union.

While these deficiencies can partially be ascribed to the haste with which the drafters had to meet the impatient deadlines set by Libya, they will place an enormous burden on the OAU Secretariat and the agendas of Council of Ministers and Summit meetings for the next few years. Any number of protocols to the Act will have to be prepared and submitted during the July 2001 Council and Summit meetings in Lusaka and those scheduled for 2002 when, quite probably, the first meeting of the Assembly of the African Union will be held in South Africa.

This challenge is compounded by the lack of provision for and clarity regarding effective mechanisms and measures to allow a smooth transition from the OAU to the Union. The Secretariat of the OAU itself has recently gone through a painful restructuring and downsizing process, and it will be important to ensure that the transition from OAU Secretariat to the Commission of the African Union does not further disrupt the organisation.

Although article 33 of the Constitutive Act is entitled ‘Transitional Arrangements and Final Provisions’, it merely states that the Act will replace the OAU Charter, which will remain operative for a transitional period of one year (or such further period as determined by the Assembly) after the Act comes into force for the purpose of enabling the OAU/AEC to undertake the necessary measures towards the devolution of its assets and liabilities to the Union. It further states that the OAU Secretariat will act as the interim secretariat of the Union. Quite clearly, the Union is going to be a much more expensive undertaking than the US $31 million annual budget of the OAU. Thus far it appears as if little thought has been given to how the Union will be funded, in particular, new structures such as the Pan-African Parliament. While Libya has been funding the process towards the Union through a grant of US $1 million, the institutions within the Union will require resources well in excess of present OAU means. By the middle of 2000, only 17 of the 53 member states of the OAU were up to date in the settlement of their financial obligations to the regular budget of the organisation. It is therefore difficult to foresee how members will meet any additional obligations.

Perhaps more urgently, the Lusaka Summit will have to take an early decision whether to retain Dr Salim as the first transitional chairperson of the Commission of the Union for a year after his appointment as Secretary-General of the OAU ends in September 2001, or to seek new blood for the Commission right from the start. The Charter of the OAU limited the powers and resources of what was, until 1979, called the Administrative Secretary-General. Whereas the head of the OAU had the equivalent stature of a minister, there appears to be some support for the chairperson of the African Union to have a more senior stature, even that of a head of state. In this vein, the name of President Alpha Omar Konare of Mali as first president of the Commission has already been mentioned as a potential candidate in 2002 when his term of office ends. A number of other candidates have also emerged, including Namibian Foreign Affairs Minister Theo-Ben Gurirab who served as president of the UN General Assembly last year, and UN Assistant Secretary-General Ibrahima Fall from Senegal.

The African Union is an ambitious undertaking. Yet, practically, despite the change in name, many of the institutions that have been created as part of the OAU and the AEC will continue unchanged for the foreseeable future. In themselves, new institutions and frameworks will do little to rectify the situation described in the Yaoundé Declaration in 1996:

"at the close of the 20th century ... of all the regions of the world, Africa is indeed the most backward in terms of development from whatever angle it is viewed, and the most vulnerable as far as peace, security and stability are concerned."

Only appropriate leadership and policies, the assistance of the international community and the continued pressure towards good governance, democratisation and a respect for individual rights by ordinary Africans will ensure that Africa emerges from the conflict, underdevelopment and pain that it is presently experiencing.