Meeting of Government Experts on Legal Matters 6 to 11 May 2014 Addis Ababa,

Ethiopia



Exp/Min/Legal/XIV/Rpt.











REPORT OF THE MEETING OF GOVERNMENT EXPERTS
ON LEGAL MATTERS






AFRICAN UNION



UNION AFRICAINE


UNIO AFRICANA
Addis Ababa, Ethiopia P. O. Box 3243 Telephone: +251 11 551 7700 Fax:
+251 11 551 7844
Website: www.africa-union.org
Exp/Min/Legal/XIII/Rpt.
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I. INTRODUCTION


1. Pursuant to Decisions Assembly/AU/Dec.227(XII) adopted by the Twelvth Ordinary
Session of the Assembly of the African Union held in Addis Ababa, Ethiopia, in
February 2009, the Commission convened the inaugural session of the STC on
Justice and Legal Affairs, so as to provide well-informed inputs to the work of the
Executive Council in their areas of specialization. Additionally, they should be
involved in monitoring the programme development and their implementation by the
AU and Regional Economic Communities (RECs) on behalf of the Executive
Council.

II. ATTENDANCE


2. The following Member States were in attendance:

Algeria,Ethiopia,Nigeria,Egypyt,Togo,Lessotho,Tanzania,Sadr,Namibia,Moritani,
Saharawi Republic ,Eritrea ,Niger, Cameron, Mali, Tunisia, Djibouti, Gambia,
Burkina Faso, Angola, Senegal

3. The meeting was also attended by the following: the African Court on Human and
Peoples Rights, the Pan African Parliament.

III. OPENING OF THE MEETING


WELCOME REMARKS BY THE LEGAL COUNSEL Prof. Vincent O. Nmehielle

4. The meeting was opened by Prof. Vincent O. Nmehielle, the Legal Counsel on
behalf of H.E. Dr Nkosazana Dlamini Zuma, Chairperson of the AU Commission. He
welcomed delegates to Addis Ababa, the Headquarters of the African Union.

5. Prof. Vincent O. Nmehielle informed participants that this meeting was the last in the
series of a very long process that was expected to culminate in the finalization of
their agenda item and adoption of recommendations for submission to the Ministers
of Justice/Attorneys General.

6. In concluding his remarks, he expressed the hope that the experts will work with
diligence and a single-minded determination in the time set in order to accomplish
the task before them since the outcome of your meeting will be submitted to the
Ministers and after to the forthcoming session of AU Policy Organs to be held in
Malabo, Equatorial Guinea, in June 2014.


Exp/Min/Legal/XIII/Rpt.
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BRIEF ON PROGRESS MADE IN CONSIDERATION OF THE LEGAL
INSTRUMENTS Prof. Vincent O. Nmehielle

7. The Legal Counsel, Prof. Vincent O. Nmehielle briefly recalled the work done
towards the finalization of the Draft Protocol on the Statute of the African Court of
Justice and Human and Peoples Rights and the Draft Protocol on Amendments to
the Protocol on the Statue of the African Court of Justice and Human Rights.

8. He further recalled the consideration of a Briefing Note of the Commission on the
implementation of the Assembly Decisions on Universal Jurisdiction and the
Progress Report of the Commission on the implementation of Assembly Decisions
on the International Criminal Court (ICC).

9. The Legal Counsel stated that Draft Legal instruments and recommendations of the
last Conference of Ministers of Justice and Attorneys General were submitted to the
Ordinary Session of the Executive Council held in July 2012. Following due
consideration, Council endorsed all the recommendations except those relating to
the adoption of the Draft Protocols relating to the PAP and the Court, respectively.
These two Draft instruments are put again on your agenda in order to consider some
of the pending issues.

10. He reminded delegates that the outstanding issue in regards to the Draft Statute of
the Court has to do with the definition of the crime of unconstitutional change of
government and which the Peace and Security Council has requested for the
expertise of the government experts for consideration by the meeting.

IV. ELECTION OF THE BUREAU

a. The meeting decided to retain the Bureau of the first, second, third, fourth,
fifth and sixth meetings as follows:

Chair: Cameroon
1
st
Vice Chair: Namibia
2
nd
Vice Chair: Mali
3
rd
Vice Chair: Sahrawi Republic
Rapporteur: Kenya

V. CONSIDERATION AND ADOPTION OF THE DRAFT AFRICAN
CONVENTION ON CROSS BORDER COOPERATION (NIAMEY
CONVENTION)

11. The Legal Counsel presented the Draft African Union Convention on Cross-Border
Cooperation and highlighted the significance of the Convention and its objectives as
stated in the Convention.
Exp/Min/Legal/XIII/Rpt.
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12. Following this presentation, the meeting agreed to consider the Draft Model
Legislation, Article by Article.
Consideration of Article 1

13. During the consideration of Article 1, the following observations were made:

i. Request was made to begin Article 1 of be amended to begin with In
the meaning of this convention or in accordance;

14. Following these observations, the Legal Counsel clarified as follows:

i. That for the purposes of this convention, the wording that the members
were attempting to change was universal and that it sounded well in
the English language.
ii. That the words for the purposes was essential since the defined
terms could have different meanings in other contexts;
Consideration of Article 2

15. During the consideration of Article 2 the following observations were made:

i. There is a need to remove the promotion in Article 2(1);
ii. There is a need to remove facilitate in Article 2(1);
iii. Need to remove local in Article 2(1) since it also meant sub-regional;
iv. The need to change the first sentence to begin with The objective of the
Convention is to
v. In Article 2(6), to remove as well as in the English version and to add
lastly on the French version.

16. Following these observations, the following clarifications were provided:

a. That local should not be removed since it incorporated local governments;
b. It was agreed that only facilitate should be removed in Article 2(1);
Consideration of Article 3

17. During the consideration of Article 3, the following observations were made:

a. There is a need to merge article 3(2) and 3(3) since social economic
development would also incorporate cultural activities;
b. The need to add State parties to this convention hereby commit
themselves
c. That Article 2 and 3 were similar to Article 6
d. To substitute including in Article 3(4) with especially
e. That cultural activities were different to socio economic rights

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18. The meeting adopted Article 3 as amended
Consideration of Article 4

19. The meeting adopted Article 4 without amendment.
Consideration of Article 5

20. During the consideration of this article , the following observations were made

a. There is a need to remove as much as possible in Article 5(1) and
substitute it with where applicable;
b. That the change was not necessary in French

21. Following these observations, the Legal Counsel clarified as follows:

a. That the removal of as much as possible will result in the sentence losing
its meaning and defeat the objectives of the Convention.

22. The meeting adopted Article 5 without amendment.
Consideration of Article 6

23. The meeting adopted Article 6 without amendment.
Consideration of Article 7

24. During the consideration of this article , the following observations were made:

i. There is a need for the removal of local territorial administrators and to
retain local administrators only,

25. Following these observations, the Legal Counsel clarified as follows:

i. That the removal of local administrators would result in difficulties when
obligating federal states where local administrators usually retain their
independence on certain matters of the state.

26. The meeting adopted Article 6 without amendment.
Consideration of Article 8

27. During the consideration of this article , the following observations were made:

a. In relation to Article 8(c) members mentioned the difficulties that are
usually met by member states when it comes to reporting obligations
imposed by treaties.
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b. The need for putting pressure on members to report on border issues in
order to ensure compliance with the Convention.
c. The possibility of issues of reporting being covered by the Committee
which will incorporate information from member states.
d. There is a need to encourage and put pressure on member states to
report.

28. Following these observations it was then decided by the Chairperson that member
states should report every other year instead of annually he also mentioned the
fact that this would take into consideration the inputs of the member states and the
sensitivity and criticalness of border issues.
Consideration of Article 9

29. During the consideration of this article , the following observations were made:

a. Need to clarify whether the committee will be acting on its initiatives or as
requested by member states
b. In the French version members suggested the removal of nay

30. Following these observations It was clarified that:

a. The wording of this section should be read in line with Article 9(3) which
categorically states that the Regional Boarder Consultative Committee will
act in an advisory capacity and that it could not take any decision against
state interests
b. That the Committee was not a decision making body but a
recommendation body
c. That allowing the Committee to develop road maps would allow local
communities to have dialogues
d. That the Committee will have to derive the desires of the population in that
particular area.

31. The meeting adopted Article 9 as amended
Consideration of Article 10

32. During the consideration of this article , the following observation was made:

i. In Article 3(b) to change Are as to areas

33. The meeting adopted Article 10 as amended
Consideration of Article 11

34. During the consideration of this article , the following observation was made:

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i. In Article 11(2) (a) it was suggested that and be removed after the
semicolon in the French version.
ii. In relation to Article 2(a) members requested clarity on the nature of the
voluntary contributions that members would be obliged to provide under
the convention.
iii. The need that contributions be deducted from the contributions of member
to the Commission

35. Following these observations, the following clarification was offered:

a. The Peace and Security Unit mentioned that in its experience certain
members had been willing to volunteer to contribute and the fact that
taking into consideration Solidarity and the African Solidarity Fund
members were encouraged to contribute voluntarily.
b. Also the fact that certain events would be organized to source funding.
c. The fact that member states would be reluctant to adopt the treaty if the
contributions are not voluntary.

36. The meeting adopted Article 11 without amendment.
Consideration of Article 12

37. The meeting adopted Article 12 without amendment.
Consideration of Article 13

38. The meeting adopted Article 13 without amendment.
Consideration of Article 14

39. During the consideration of this article , the following observation were made:
a. Ratification and accession to be substituted with ratification or
accession

40. Following these observations, the following clarification was offered:

a. That ratification and accession could not take place at the same time or
optionally.

41. The meeting adopted Article 14 as amended.
Consideration of Article 15

42. During the consideration of this article , the following observation was made:

a. Need to remove or accession

43. Following these observations, the following clarification was offered.
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a. That accession could not take place after the treaty has come into force

44. The meeting adopted Article 13 as amended.
Consideration of Article 16

45. During the consideration of this article , the following observation was made
a. The need to add above in Article 16(5) of the French Version;
b. Need to amend notified to notification in Article 16(3) in the French version
change in French;
46. The meeting adopted Article 16 as amended.
Consideration of Article 17

47. During the consideration of this article , the following observation was made
a. The need for Article 17(1) and 17(2) to be combined since they both deal
with a similar subject
b. Article 17(4) to be divided into two sentences, and the second sentence to
begin with The Chairperson shall notify. and to substitute He with
The Chairperson;
48. The meeting adopted Article 17 as amended.


VI. DRAFT AFRICAN CHARTER ON THE VALUES AND PRINCIPLES OF
DECENTRALIZATION, LOCAL GOVERNANCE AND LOCAL
DEVELOPMENT