ADR in Africa
Under your Legal History and Traditions course you have discussed the legal system of the Africans. African indigenous customary norms encouraged ‘Compromise’ over litigations before officers. But these days the status seems to have been changed to some other features. Here is an excerpt from George Washington University, National Law Center 2003, Unfinished business: Conflicts, the African Union and the New Partnership for Africa's Development, by Udombana, Nsongurua J. The text reveals the degree of dispute in the continent, the measures being taken to resolve them and attempts of regional institutes (OAU and now AU) on the matter.
THE CURRENT AGENDA FOR DEALING WITH CONFLICTS IN AFRICA
A. The Normative Structure
This section highlights the normative framework of African leaders for dealing with conflict, peace, and security in the continent. Though such normative rhetoric on the problem of conflict abounds in many resolutions and declarations of the OAU, this section focuses on the recent AU Act and the NEPAD, the former a binding treaty, the later a declaration of intent.
1. The AU Act
When African leaders adopted the AU Act (the Act) in 2000, they were "conscious of the fact that the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent and of the need to promote peace, security and stability as a prerequisite for the implementation of our development and integration agenda."72 Consequently, the Act sets out as some of its objectives to "[p]romote peace, security, and stability on the continent"73 and the establishment of "the necessary conditions which enable the continent to play its rightful role in the global economy and in international negotiations."74 These objectives are supported by principles, including the "establishment of a common defence policy for the African Continent;"75 the "peaceful resolution of conflicts among Member States of the Union through such appropriate means as may be decided upon by the Assembly;"76 and the "prohibition of the use of force or threat to use force among Member States of the Union."77 Other principles are the "peaceful co-existence of Member States and their right to live in peace and security"78 and "the right of Member States to request intervention from the Union in order to restore peace and security."79
One of the functions of the AU Assembly will be to "give directives to the Executive Council on the management of conflicts, war and other emergency situations and the restoration of peace."80 …..
Regrettably, the AU Act did not initially provide any mechanisms for conflict prevention, management, and resolution, though this was one of the goals of the Union. It failed to factor in the "Cairo Declaration," which established the Mechanism for Conflict Prevention, Management and Resolution (MCMPR).91 Likewise, it failed to factor in the "Declaration of the Assembly of Heads of State and Government of the Organization of African Unity on the Political and Socio-Economic Situation in Africa and the Fundamental Changes Taking Place in the World,"92 in which the OAU rededicated itself "to work together towards the peaceful and speedy resolution of all conflicts."93 It failed to factor in the "Cairo Agenda for Action,"94 in which the OAU pledged to "give the maximum political and financial support to the OAU Mechanism for Conflict Prevention, Management and Resolution, for its effective peace-making operations, by involving all segments of the population and mobilizing adequate official and private resources for the OAU Peace Fund."95
The omission was baffling,96 considering the sentiment of the OAU in its 1999 Algiers Declaration that "the OAU Mechanism for Conflict Prevention, Management and Resolution [(MCMPR)] is a valuable asset for our continent which must be nurtured and consolidated" and it "symbolises the concrete resolve of our continent to fully assume its responsibilities."97 As an afterthought, the OAU rectified these deficiencies by incorporating the objectives and principles of the Cairo Declaration as "an integral part of the declared objectives and principles of the African Union."98 For example, in accordance with Article 5(2) of the AU Act, the OAU included the Central Organ of the MCMPR as one of the Organs of the AU.99 ……….
B. The Institutional Structure
In the past African leaders created various institutions to manage conflicts. Some of these have been in the form of ad hoc committees and commissions. For example, African leaders established the Ad Hoc Committee on Inter-African Disputes in July 1977 at the 14th Ordinary Session of the OAU Assembly in Libreville. Whatever the benefits of ad hoc arrangements for dealing with conflicts, one of the deficiencies is that such arrangements are remedial rather than proactive.114 The following section, however, deals with three major institutional structures designed by African leaders for the management and resolution of conflicts. The first, which is now defunct but is described below to set the context for the other arrangements, is the OAU Commission of Mediation, Conciliation and Arbitration. The second is the MCMPR and the third and most recent is the Peace and Security Council.
1. The OAU Commission of Mediation, Conciliation and Arbitration
When African countries adopted the OAU Charter in 1963, they created the Commission of Mediation, Conciliation and Arbitration to accomplish the purposes of the Charter.115 It served as a mechanism for the peaceful settlement of disputes among Member States.116 The Commission was described as the raison d'etre of the OAU,117 given the fact that peaceful resolution of conflicts, both large and small, provided the necessary conditions for orderly progress of Africa as a whole and of the Member States of the OAU in particular.118 It has, however, been asserted that African leaders gave high priority to the Commission because of the border conflicts then occurring between Ethiopia and Somalia and between Algeria and Morocco.119
In 1964, the OAU adopted a Protocol that defined the duties and powers of the Commission.120 The Protocol was made an integral part of the OAU Charter; which is to say that there was no provision for a formal ratification of the Protocol, as the Protocol merely required the approval of the OAU Assembly for it to become an integral part of the OAU Charter.121 This approval was given at the first Assembly at its meeting in Cairo, Egypt, in July 1964. The Assembly had to dispense with the need for a formal ratification of the Protocol in order to avoid undue delay that might stultify efforts to address urgent security problems that were plaguing Member States.122
The Commission was not a judicial body, though it provided three modes of settlement: mediation, conciliation, and arbitration, as enjoined by the U.N. Charter.123 The Protocol did not include any provision on the less formal procedures of 'good offices' and 'negotiation,' as these are hardly distinguishable in practical effect from mediation.124 Mediation and conciliation are non-adjudicatory, informal procedures. Mediation, which is the least formal of the modes of settlement in international practice,125 involves an official third party seeking to reconcile the views and claims of the parties or offering advice or advancing proposals for a possible solution that is, nevertheless, binding.126 The problem with third party mediation is that it can easily transgress the fine line and become intervention, "siding with one party to equalize the power balance, the effect [being] to expand and complicate the conflict by transforming it from an essentially dyadic conflict relationship to a triadic conflict triangle."127
By contrast, conciliation refers to an impartial examination of the subject matter and a search for an acceptable settlement to the dispute. It entails objective evaluation and clarification of the issues in dispute, endeavouring to bring about an agreement between the parties upon mutually acceptable terms.128 The procedures for conciliation within the framework of the Commission were clearly influenced by the notions of formal judicial procedure and usage.129 Where the parties choose this medium, the matter was to be formally brought before the Commission by means of a petition addressed to the President by one or more of the parties to the dispute. Where only one of the parties makes such a request, then it must be indicated in the petition that prior written notice has been given to the other party. Either way, the petition must include a summary of the statement of the grounds of the dispute.130 Upon receipt of the petition, the President of the Commission was to set up a Board of Conciliators,131 which was required to consider all questions submitted to it and to undertake any enquiry or hear any person capable of giving relevant information concerning the disputes.132 In short, the duty of the Conciliators was to "bring about an agreement between the parties upon mutually acceptable terms".133
Arbitration, on the other hand, is a compulsory means of dispute settlement, a judicial method that entails the delivery of a binding decision based on law rendered by a tribunal whose composition is determined by the parties. Submission to arbitration is dependent upon prior agreement of the parties. Thus, under the Protocol, if the parties to a dispute that has been brought before the Commission agree to resort to arbitration, an Arbitral Tribunal was to be established by the Commission.134 Since arbitrators perform essentially judicial functions, the Protocol provided that the intended arbitrators should possess legal qualification.135 The procedure of arbitration has never been used, however, even within the framework of an ad hoc committee. This reluctance was already manifest at the founding conference of the OAU in 1963, in its rejection of a provision in the draft Charter for a Court of Mediation, Conciliation and Arbitration to be set up by means of a separate treaty.136
It is important to note that this ad hoc Commission, which was vested with the powers of investigation and inquiry with regard to disputes submitted to it,137 never became operational and was subsequently abolished. Technically, the Commission continued to have a formal existence, since its formal abolition required an amendment to the OAU Charter, which was not done. The OAU mandated that the OAU Secretary-General find ways to dispose of all the assets of the Commission.138 Even before its abolition, the OAU restricted the Commission to only interstate conflicts.139 In fact, "[r]arely did the OAU attempt reconciliation," even within the framework of an ad hoc committee.140 While the Commission existed, the OAU starved it for funds.141 It survived on mere handouts from the General Secretariat of the OAU "to enable it [to] operate."142 Experts attributed its non-functionality to Africa's mistrust of formal dispute settlement.143 This argument is logically untenable since "African States have [never] been averse to the establishment of numerous ad hoc bodies under the auspices of the OAU and the involvement of the U.N. to settle their disputes."144
2. The MCMPR
A serious and potentially significant attempt to tackle the problem of conflicts in Africa came in 1992, when the Secretary-General of the OAU submitted to the 56th Ordinary Session of the Council of Ministers and the 28th Ordinary Session of the Assembly of the OAU, meeting in Dakar, Senegal, the "Report [of the Secretary-General] on the establishment, within the OAU, of a Mechanism for Conflict Prevention, Management and Resolution."145 Following the report, the OAU Assembly adopted a declaration establishing the MCMPR to take over from the redundant and ad hoc Commission of Mediation, Conciliation and Arbitration.146 The focus of the MCMPR would be to streamline the procedures and processes of dealing with conflicts and conflict situations.147 Its establishment was an attempt at putting Humpty-Dumpty together again and giving concrete expression to Africa's commitment to work together towards the peaceful and speedy resolution of all conflicts on the continent.148 The MCMPR was and is intended to bring to the processes of dealing with conflicts in Africa a new institutional dynamism that will enable speedy action to prevent or manage and, ultimately, resolve conflicts when and where they occur.149
The MCMPR is built around a Central Organ, with the Secretary-General and the secretariat comprising its operating arm.150 The Central Organ consists of the Member States of the OAU Summit Bureau, which are elected annually, bearing in mind the principles of equitable regional representation and rotation.151 To ensure continuity, the States of the outgoing chairman and, where known, the incoming chairman will be members of the Central Organ.152 The Central Organ functions at two levels-the level of heads of state and that of ministers and ambassadors who are accredited to the AU or duly authorized representatives.153 The Organ may, however, seek the participation of other Member States in its deliberations, particularly the neighbouring countries. It may also seek, from within the continent, "such military, legal and other forms of expertise as it may require in the performance of its functions."154
The primary objective of the MCMPR is the anticipation and prevention of conflicts. This has the advantage of obviating the need to resort to the complex and resource-demanding peace-keeping operations that the continent often finds difficult to finance.155 However, where conflicts have already occurred, then the MCMPR will embark on peace missions in order to facilitate resolutions of such conflicts and deploy civil or military observer groups for a limited capacity and for a limited duration.156 It is important to observe that the MCMPR is already engaged in these kinds of exercise. Thus, in May 2002, it deployed a "Military Observer Mission" to the Comoros to assist the Comorian authorities in ensuring the security of the archipelago during the electoral process.157 The Central Organ of the MCMPR has, in the past, also reviewed various conflict situations in Africa, including internal conflicts.158
In discharging its mandate, the Central Organ shall coordinate its activities closely with the African regional and sub-regional organizations and shall cooperate, as appropriate, with the neighbouring countries with respect to conflicts which may arise in the different sub-regions of the continent.159 This obviously applies to sub-regional organizations like the Economic Community of West Africa, the Southern African Development Community, and the Common Market for Eastern and Southern Africa.160
The MCMPR places particular stress on the role of the Secretary-General. It empowers him or her to deploy efforts and to take all appropriate initiatives to prevent, manage and resolve conflicts, acting under the authority of the Central Organ.161 To achieve this end, he relies on the human and material resources available at the secretariat. He may also utilize eminent African personalities, in consultation with the authorities of their countries of origin and, where necessary, may make use of other relevant envoys or special representatives as well as dispatch fact-finding missions to conflict areas.162 Meanwhile, the OAU had established a special fund, made up of financial appropriations from the regular budget of the OAU/AU, voluntary contributions from Member States as well as other sources within Africa to fund its operational activities relating to conflict management and resolution.163 Disbursement from the fund is, however, subject to the approval of the Central Organ.164
In all situations, the objectives and principles of the OAU Charter, now AU Act, must guide the MCMPA. In particular, the following principles guide the MCMPA: the sovereign equality and respect for the sovereignty and territorial integrity of Member States, the inalienable right to independent existence, the peaceful settlement of disputes as well as the inviolability of borders inherited, (uti possidetis juris).165 The MCMPA will function on the basis of the consent and the co-operation of the parties to a conflict.166 Regrettably, this adherence to sovereignty and non-intervention might weaken the MCMPR. Many critics have actually called for a revision of these doctrines;167 and it is gratifying that the OAU had mandated its secretary-general, now Chairman of the Commission, to undertake a review of the structures, procedures, and working methods of the Central Organ in order to remove all obstacles to the smooth functioning of the MCMPR.168
Overall, it will be necessary to devise a system for early warning, if the MCMPR is to succeed in its allotted tasks. That is to say that it must develop the capacity for information gathering and analysis in order to provide strategic options for preventive action and/or an informed, appropriate response.169 The MCMPR must also design an appropriate mechanism for dealing with the post-settlement phase, as this is, arguably, the most important part of the conflict resolution process. It is here that the foundations for a genuine culture of peace are laid. As Richard Jackson observed, "[s]tillborn political pacts are much more difficult to resolve than ongoing civil wars, as the parties have hard-won positions to protect and a cadre of armed supporters."170 Consequently, failures of implementation and reconstruction can have devastating consequences and harden the attitudes of 'spoilers.'171 The experiences in such African countries as Angola, Mozambique, Eritrea, Ethiopia, Sierra Leone, and DR Congo attest to the veracity of this assertion. The key processes that Africa will need for long-term peace building, therefore, include demobilization for fighters, resettlement for displaced persons, economic reconstruction, rebuilding civil society, and national reconciliation.172
3. The Peace and Security Council
In July 2002, the Assembly of Heads of State and Government of the AU, meeting in Durban, South Africa, adopted a Protocol on the establishment of Peace and Security Council (PSC) for Africa.173 The PSC will be a standing decision-making organ for the prevention, management and resolution of conflicts. It shall be a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa.174 The Commission, a Panel of the Wise, a Continental Early Warning System, an African Standby Force, and a Special Fund, will support the PSC.175 Upon its entry into force, the Protocol will replace the Cairo Declaration and will supersede all resolutions and decisions of the OAU relating to the MCMPR in Africa that are in conflict with it.176
The Protocol establishes an operational structure for the effective implementation of the decisions taken by African leaders in the areas of conflict prevention, peace-making, peace support operations and intervention, as well as peace-building and post-conflict reconstruction.177 It stresses the need to forge closer cooperation and partnership between the UN, other international organizations and the AU, in promoting and maintaining peace, security, and stability in Africa.178 The AU is particularly concerned with the impact of the illicit proliferation, circulation, and trafficking of small arms and light weapons in threatening peace and security in Africa and undermining efforts to improve the living standards of African peoples.179 The Protocol also recalls an earlier commitment of African leaders to the Solemn Declaration on the Conference on Security, Stability, Development and Cooperation in Africa.180
The PSC will undoubtedly be the African equivalent of the UN Security Council, except that none of the 15 members will be able to exercise a veto. For example, it will be able to draw on a stand-by force from African armies to intervene if crimes against humanity are being perpetrated. The PSC will be composed of fifteen Members "elected on the basis of equal rights."181 Of this number, ten will be elected for a term of two years while five members will be elected for a term of three years, "in order to ensure continuity."182 A prospective Member State must, however, satisfy certain criteria. These include a commitment to uphold the principles of the AU; contribution to the promotion and maintenance of peace and security in Africa (for this purpose, experience in peace support operations would be an added advantage); capacity and commitment to shoulder the responsibilities entailed in membership; participation in conflict resolution, peace-making, and peacebuilding at regional and continental levels; and willingness and ability to take up responsibility for regional and continental conflict resolution initiatives. Others include contribution to the Peace Fund and/or Special Fund created for specific purpose; respect for constitutional governance, in accordance with the Lome Declaration, as well as the rule of law and human rights; having sufficiently staffed and equipped Permanent Missions at the Headquarters of the Union and the United Nations, to be able to shoulder the responsibilities which go with the membership; and commitment to honor financial obligations to the Union.183
The Protocol sets out the objectives and principles of the PSC. The objectives include the promotion of peace, security and stability in Africa, which is intended to guarantee the protection and preservation of life and property, the well-being of the African people and their environment, as well as the creation of conditions conducive to sustainable development. It also has as its objectives the anticipation and prevention of conflicts. In circumstances where conflicts have occurred, the PSC shall have the responsibility to undertake peace-making and peace-building functions for the resolution of these conflicts; promote and implement peace-building and post-conflict reconstruction activities to consolidate peace and prevent the resurgence of violence; co-ordinate and harmonize continental efforts in the prevention and combating of international terrorism in all its aspects; and develop a common defence policy for the Union, in accordance with the AU Act.184 It will also promote and encourage democratic practices, good governance and the rule of law, protect human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law, all aimed at preventing conflicts.185
Similarly, the Protocol provides, by way of principles, that the PSC shall be guided by the principles enshrined in the AU Act, the U.N. Charter, and the Universal Declaration of Human Rights (UDHR). This includes the peaceful settlement of disputes and conflicts, early responses to contain crisis situations in order to prevent them from developing into full-blown conflicts, respect for the rule of law, fundamental human rights and freedoms, the sanctity of human life, and international humanitarian law.186 Others are interdependence between socio-economic development and the security of peoples and States, respect for the sovereignty and territorial integrity of Member States, non-interference by any Member State in the internal affairs of another, sovereign equality and interdependence of Member States, inalienable right to independent existence, and respect of borders inherited on achievement of independence-uti possidetis juris.187 This has been a common refrain of African leaders since the days of the OAU Charter,188 and probably explains was the OAU was often labelled, rightly or wrongly, as a conservative club of African political oppressors. Remarkably, however, things appear to be changing. Thus, the Protocol, like the AU Act, 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, in accordance with Article 4(h) of the AU Act-and the right of Member States to request intervention from the Union in order to restore peace and security.189 …….
Overall, it may be said that the establishment of the PSC in a collective Africa is certainly a welcome development, though its power could be a source of both peace and conflict among Africa's stronger nations. Expectedly, competition among countries for the five seats that will chair the PSC will be intense, as they will be able to advance their individual agendas and foster stability-or even instability-on the continent. It is, however, hoped that these leaders not exploit military interventions to advance their own regional and continent-wide agendas.