Accession to the African Charter on Democracy, Elections and Governance: briefing by the Department of International Relations and Cooperation

Meeting report

Ambassador Ajay Bramdeo, Chief Director of the Africa Multilateral unit of the Department of International Relations and Cooperation, gave a briefing on the African Charter on Democracy, Elections and Governance. He started by giving an overview of the historical evolution of the Charter, which began in July 1990 when the Organisation of African Unity Assembly (OAU Assembly) had carried out a critical review of the political, social and economic conditions on the continent. This culminated in the “Declaration on the Political and Socio-Economic Situation in Africa and Fundamental Changes which are Currently Taking place in the World”. With the 1999 Algiers OAU Assembly Decision on unconstitutional changes of government, emphasis was placed on the promotion of democracy, protection of human rights and upholding the rule of law. The decision also constituted a commitment to enhance social and economic governance in Africa. The Algiers Decision of 1999 subsequently led to the 2000 Lome “Declaration for an OAU Response to Unconditional Changes of Government” through which a sanction regime in cases of unconstitutional changes of government was adopted. In 2002, the launch of the African Union (AU) in South Africa gave further impetus to the continent’s pursuit of peace, democracy and economic development. The AU co-hosted a continental conference with the Independent Electoral Commission of South Africa in Pretoria in April 2003 under the theme “Strengthening African Initiative: Elections, Democracy and Governance”. The Pretoria conference laid the foundation for the drafting of the Charter. The Charter was adopted by the AU Summit on 30 January 2007, in Addis Ababa, Ethiopia.

Mr Bramdeo then provided a brief overview of the provisions of the Charter. He explained that the Preamble noted the founding principles of the Charter, including good governance, popular participation, rule of law, human rights as enshrined in the AU Constitutive Act and was committed to democratic transfer of political power. Chapter 1 to 3 contained introductory articles.

Chapter 4 to 8 were comprised of articles embodying substantive elements. These included basic adherence obligations of State Parties, supremacy of national constitutions, upholding of the rule of law, promotion and protection of human rights, establishment of a culture of democracy as well as the establishment and strengthening of institutions supporting democracy. These chapters also provided for the establishment and strengthening of independent and impartial national electoral bodies and assistance by the AU Commission of Member States to strengthen electoral institutions and processes. Furthermore, these chapters provided a process for electoral observation and monitoring, asserted the role of the AU and the AU Peace and Security Council and provided for sanctions in case of unconstitutional changes of government.

Chapters 9, 10 and 11 dealt with the role of State Parties, the AU Commission and Regional Economic Communities (RECs), the importance of the role of State Parties in advancing political, economic and social governance. It also emphasised the need for engagements with traditional authorities and all spheres of government and for State Parties to domesticate the provisions of the Charter and submit measures taken in this regard every two years. It also provided for the AU Commission to develop benchmarks for implementation of the Charter and for RECs to coordinate and cooperate with the AU in the implementation of the instrument.

Mr Bramdeo proceeded to explain the value of the Charter. Firstly it would contribute to the pursuit of a united, peaceful and prosperous Africa. Secondly, it would help to attain and maintain peace, stability and good governance which was important for socio-economic development. It also held political leaderships accountable to the electoral system and provided an opportunity for Member States to engage with each other on issues of democracy. It constituted an additional instrument to respond to unconstitutional changes of government. It promoted democratic transfer of political power and provided common perspective and shared values in democratic principles and practices among Member States.

Lastly, Mr Bramdeo dealt with the status of ratification of the Charter, as well as the status of the South African process of ratifying the Charter. He explained that the South African Cabinet had endorsed the Charter in 2008, but due to unforeseen circumstances, the Charter could only be signed in February 2010. The Charter conformed with South Africa’s Constitution, domestic laws and its international obligations. It was in line with regional Protocols and/or Declarations, for example the South African Development Community (SADC) Principles and Guidelines and governing democratic principles. Mr Bramdeo confirmed that the Charter was consistent with South Africa’s foreign policy principles. Ratifying the Charter would have no cost implications for South Africa. As of 31 August 2010, 37 countries had signed the Charter and only six have ratified. Accordingly, at least nine further instruments would have to be submitted before the Charter could come into force. The six countries that have ratified the Charter were Burkina Faso, Ethiopia, Lesotho, Mauritania, Ruanda and Sierra Leone. In conclusion, Mr Bramdeo commented that one would have expected that South Africa would have been one of the first countries to have ratified the Charter.

Discussion
Mr S Ngonyama (COPE) commented on the fact that the Charter had been adopted by the AU Summit in 2007 already, but that South Africa would only be signing it in 2010. He said that South Africa was supposed to be a trailblazer on these issues in the continent of Africa. This delay in signing the Charter cannot merely be attributed to “unforeseen circumstances” and asked the Department to provide clarity on the cause of the delay. The Government’s lack of action was prejudicial to the people of South Africa.

Mr Bramdeo explained that the best way of articulating the events that took place in 2008 which resulted in South Africa not signing the Charter, was indeed “unforeseen circumstances”.  Alternatively it could be referred to as “matters of state”. Had these events not taken place, South Africa would have been one of the first countries to have ratified the Charter.

Mr Ngonyama stated that he disagreed with Mr Bramdeo’s statement that the implementation of the Charter would have no cost implications as the domestication of the Charter would require some work which would cost money. He emphasised the importance thereof that the Charter must not just sit in the files of Government, but that it must cascade to ordinary people in order to deepen democracy. He asked the Department to explain what its plan was to get the Charter to the people, at least to such an extent that it was understood by the general populace. He also asked the Department to provide more clarity on the issue of enforcement.

Mr K Mubu’s (DA) question was how many member countries had been sanctioned as a result of breach of the Charter.

Mr Bramdeo answered that sanctions had been applied to Mauritania, Niger, Guinea and Madagascar. Sanctions were applied to any country that had an unconstitutional change of government, no matter how sophisticated the employment method had been. The AU Council would then look at what basic principles of the country’s constitutive act had been flouted and the meeting will recommend sanctions to ministerial and summit level of the Security Council, which would then decide what sanctions would be applied. Mr Bramdeo added that together with the sanctions, came engagement with the government of the country, assisting them to move back to principles of democracy. However, as part of the process, certain conditions were imposed, which had to be adhered to by the country. Secondly, he referred to Article 49 of the Charter, which obliged Parties to submit a report to the Commission every two years on the legislative or other relevant measure taken with a view to giving effect to the principles and commitments of the Charter.

Mr Mubu asked how the AU can ensure that countries adhere to such obligations.

In response, Mr Bramdeo stated that in many of the member states the institutional capacity was lacking and accordingly there would need to be engagement between Member Countries and the Commission, which has an election advisory unit and could thus provide particular systems.

Mr K Sinclair (COPE; Northern Cape) commented that the historical development of the Charter made it seem like just another instrument which had no power to deal with countries that had not signed it.

The Chairperson, Mr D Gamede (Kwazulu Natal), commented on the fact that the Charter set the bar very low, in so far as it did not even require the majority of the countries in the continent to ratify it before it would come into effect. He asked what should be made of this.

Mr Bramdeo explained that the Commission was quite aggressively pursuing the signing of the Charter by more than 37 countries. He further noted that there was an effort to do more lobbying in member states in order to get more countries signed and ratified so that the Charter could come into force as soon as possible.

The Chairperson noted that the importance of the document necessitated that Members of Parliament attended a workshop in order to familiarise themselves with the scope and content of the Charter so that the decision to ratify it, would be an informed one.

Mr Bramdeo responded that it was outside of his mandate to say that the Members needed a workshop. However, he assured the meeting that although South Africa was late in ratifying the instrument, it had been one of the leading countries during the negotiation process on the drafting of the Charter and that South Africa was already 99% (if not a 100%) compliant with the Charter.

The Chairperson asked what plan was in place for the domestication of the Charter.

Mr Bramdeo explained that the advocacy work that needed to be done with the South African population was under consideration by various political structures, parties and civil society programmes and the Minister also dealt with it as part of her outreach every year. However, it was not just the Minister of the Department that had to deal with the issue and the more structures it was debated in, the better.

 Mr Ngonyama remarked that if the AU had an aggressive campaign to persuade countries to ratify, one could only conclude that there was a lack of commitment in the AU to pursue the matter very strongly. He noted that his concern about South Africa hinged on the same issue. South Africa was in the forefront of mediation in Africa, and would have a very strong hand in an issue like this because it intervened in all countries in Africa. However, on this crucial issue, South Africa’s hand was self-weakened. He emphasised that the Charter related to exactly the matter that was the main cause of death and instability in Africa and he expressed his disappointment that South Africa was so slow in taking the necessary action.

Mr Ngonyana then raised a controversial point. The Charter was supposed to be able to assist in all matters in Africa where democracy was threatened. He asked if the Charter was in a position to address undemocratic tendencies and cultures that resulted in a sitting president being removed by his own party after being elected by the broader society.

In response to this question, Mr M Maine (ANC; North West) noted that it was not within Mr Bramdeo’s mandate to comment on the matter. He then proceeded to explain that the president was elected by Parliament and accordingly received a political party ticket to take up the office of president, which could be recalled when the party chose to do so. He reminded Mr Ngonyana that the electoral system of South Africa was not like the one in America where the president himself was directly elected by the people.

The Chairperson stated that the meeting would not enter into a debate on the matter, but later added that this incident in South Africa had been a good test case for democracy and that the other countries in Africa envied South Africa for the way in which it was handled and resolved.

Ms E Van Lingen (DA; Eastern Cape) voiced her scepticism about South Africa being 99% compliant with the Charter. It was a disgrace that the Government was so late in getting the Charter ratified and that so much pressure was applied to Parliament at such short notice to sign the Charter immediately.

Secondly, she agreed with Mr Ngonyana that the Charter would indeed have financial implications. She further voiced her agreement with Mr Ngonyana’s point that the Charter’s message must be communicated to the public and that in this regard, the Minister was only able to reach a limited number of people.

Ms Van Lingen also asked if there was going to be the political will to act against countries where human rights and vulnerable groups were not protected and she mentioned Zimbabwe as an example.

Mr Bramdeo said that it must be remembered that the Charter reinforced and complemented other instruments that were already in place. Human rights violations could be dealt with in the African Court on Human and People’s Rights, the African Court on Justice and the South African Development Community (SADC) Tribunal. Furthermore, if provisions of the Charter were contravened in a way that warranted AU intervention, then the AU Peace and Security Council, the UN Security Council and the SADC Security Council could be involved as South Africa served on all these councils. This gave South Africa unique leverage to deal with contraventions.

With reference to the question about political will to enforce the Charter, Mr Bramdeo said that it is not just the political will of South Africa that is needed, but the political will of all the member states that had subscribed to the Charter to be able to enforce it.

Mr T Magama (ANC) requested that the message be conveyed to the Director-General that the fact that the signing and ratifications of agreements and charters were almost always done at the last minute under great time pressure, did not create a good impression.

Secondly he emphasised the obligation on Parliament to contribute to lead the process of domestication of the Charter, due to the fact that Parliament represented the people.

The Chairperson asked what would happen when the Charter was ratified.

Mr Bramdeo answered that South Africa would attend the next summit of the AU, which would be the most opportune time for the President to deposit the Instrument.

The Chairperson asked if it was therefore certain that the target that was set, of the ratification of the Charter by 11 countries before 2011, would not be met.

Mr Bramdeo explained that there was nothing that prevented South Africa from depositing the Instrument before 2011, but that, from a public relations point of view, it was better to go through the exercise of having the President deposit the instrument publicly.

The Chairperson commented that he would persist with the idea of having a workshop for Members.

Mr Sinclair added that he liked the idea of a workshop, but highlighted the importance to also speak about internal democracy, as that was a matter that created many issues in South Africa.

The Chairperson took note of this point, but stated that the biggest challenge in Africa was the different systems of governance.

Mr Ngonyana wanted to know what the required procedure was in order to procure ratification.

Mr Bramdeo explained that the endorsement of the Charter by the National Assembly (NA) and the National Council of Provinces (NCOP) would constitute ratification.

Ms R Magau (ANC) noted that the NA would be willing to ratify the Charter, but only after they have had the opportunity to attend a small workshop on the Charter so that they could be informed about what they would be ratifying. She added that they will try to finalise the process within the limited time available.

The Chairperson asked for the NCOP to recommend the ratification of the Charter. The NCOP agreed to ratify the Charter.

The meeting was adjourned.