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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

Accepted version. Final version published in The Emergent African Union Law:
Conceptualization, Delimitation, and Application - Olufemi Amao, Michèle Olivier, and
Konstantinos D. Magliveras (eds.)(OUP, 2021), 45- 62

Framing African Union Law through the Lenses of International

Constitutionalization and Federalism.

Femi Amao*1

Abstract
As an emergent concept, there is a need to examine and explore African Union (AU)
law from different perspectives in order to broaden its understanding. It is also a
concept that is set to open up a panoply of debate from a variety of perspectives in
years to come. The chapter thus explores AU law as an emergent legal order in the
context of international constitutionalization and federalism. It considers AU law as a
legal system and the interplay of that system with the idea of federalism and
constitutionalization. It looks at the roles of Constitutive of the African Union, the
African Union Commission on Human and Peoples’ Rights and the African Court on
Human and Peoples’ Rights as expressions of constitutionalization and federalism at
the continental level.

Keywords: African Union Law, Legal system, Legal order, Constitutionalization,

Federalism, Integration

1. Introduction
The chapter positions the AU and its organs as norm ‘entrepreneur’ or generators,
standard setters and lawmakers at the continental level facilitating the
constitutionalization process. From this standpoint, the Constitutive Act of the AU
could be seen as a social contract and a constitutional instrument governing
distribution and allocation of powers. This could be contrasted with the predecessor to
the AU, the Organisation of African Unity (OAU), which was not designed or conceived
as a law or norm generating institution. However, it is arguable to contend that when

1
Reader in Law, Sussex Law School, University of Sussex, UK

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

the OAU started adopting treaties under its ambit, it to some extent also in practice it
exhibited some norm generating capacities. It is suggested that international
constitutionalization and federalism provide a useful way of analysing and
understanding key aspects of the emergent legal order. The chapter starts by looking
at the AU law as a legal system and its definition and sources. Thereafter it looks at
regional integration and its legal consequences, drawing insights from the European
Union (EU). It subsequently examines AU law from the perspective of federalism and
constitutionalization. Finally, it examines the roles of two institutions of the AU as an
expression of the concepts at the continental level.

2. AU law as a legal system

Perhaps an apposite preliminary question to ask is ‘what is AU law’? This is because
the concept itself is currently not in common usage in legal parlance and discourse.
However, some African regional instruments made reference to the continental level
law without defining or explaining what means or its implications. For instance, in the
AU statute establishing the African Union Commission on International Law, an
independent advisory organ of the AU, references were made to the ‘laws of the
Union’.2 Furthermore, in the instrument expressing the AU’s willingness to collaborate
with the state of Tanzania’s offer to establish an African Institute of International Law,
reference was also made to an ‘AU Law’ but again without providing a definition.3 In
addition, in the Protocol on Amendments to the Protocol on the Statute of the African
Court of Justice and Human Rights4 passing reference was made to the ‘laws of the
African Union’ in Article 28G.

It is also notable that the incumbent president of the International Court of Justice
described the norms that have emerged at the continental level in Africa as the ‘public
law of Africa’.5 According to him,

2
Article 4(a), (e) Statute of the African Union Commission on International Law, EX.CL/478 (XIV) a (2009). See
also Article of the Constitutive Act of the AU. The Assembly of Heads of State and Government adopted the
Statute in February 2009. Decision Assembly/AU/Dec.209(XII)
3
Decision on the Establishment of an African Institute of International Law in Arusha, The United Republic of
Tanzania, Assembly/AU/14(XVIII) Add.5 (2012).
4
Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights,
Assembly/AU/Dec.529(XXIII) (2014).
5
Abdulqawi A Yusuf, Pan-Africanism and International Law (The Hague Academy of International Law, 2014),
185

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

‘[t]his public law of Africa provides a normative framework for the realization of
the political, social and economic objectives of Pan-Africanism. It also
corresponds to the present day needs and aspirations of the peoples of the
continent. Some aspects of this public law possess, however, a universal
vocation, in the sense that they may eventually influence the adoption of similar
rules on the international plane’.6

The author, Yusuf identified two categories of norms in this regard. According to him,
the first category includes norms that ‘are quite innovative and original as compared
to universal international law norms in that they only exist within the public law of Africa
as binding rules or principles.’ 7 The second category are norms that supplement
existing international law by widening their scopes or adapting them to the African
context. The two categories are components of what Yusuf described as the public
law of Africa, broadly in line with the theme of this book, AU law. According to Yusuf,
examples of the first category include norms emanating from the AU Constitutive Act
such as the right of the AU to intervene in Member States in certain circumstances
and norms emanating from conventions concluded at the continental level such as the
Kampala Convention.8 Examples of the second are norms derived from the African
Charter on the Rights and Welfare of the Child which supplement the existing
international law on the right of the child.9

It is thus apparent that there is an understanding that a legal system has been
developing alongside the AU institutions. The absence of a definition may not be too
significant because the legal order may be seen as an organic and necessary corollary
to the AU integration agenda. Nevertheless, for our purpose and preliminarily, African
Union law could be defined as the body of treaties, resolutions and decisions under
the auspices of the OAU/AU that have direct and indirect application to the member

6
Ibid
7
Ibid
8
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. African
Union (2009). Available at https://au.int/en/treaties/african-union-convention-protection-and-assistance-
internally-displaced-persons-africa accessed 15 July 2021.
9
African Charter on the Rights and Welfare of the Child (1990) Available at https://au.int/en/treaties/african-
charter-rights-and-welfare-child accessed 3 September 2020.

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

States of the African Union (AU).10 According to Ajulo, it could be regarded in a basic
sense as a ‘sub-regional international law’ or in the context of this chapter, regional
law.11 Though currently in a nascent state when compared to the laws of the European
Union (EU), AU law is evolving slowly and exhibiting traits similar to the development
of EU law. The establishment of the AU to replace the OAU was a significant step that
has had the effect of piercing the once impenetrable national borders through
transnational norms. These transnational norms form the basis for the evolvement or
development of common legal rules, concepts and principles applicable to all AU
Member States without exception.12

3. Regional integration and legal consequences

Like its predecessor the OAU, the AU has been the key driver for integration in Africa.
Integration in this context would progress gradually from a free trade area, to a
customs union, and ultimately to a political union. It is widely acknowledged that
regional integration has legal consequences not only at the regional level but also at
the international and the individual state’s level. The EU model which greatly
influenced the design of the AU is instructive.13 The original idea behind the European
Union or European Community (as it was previously known) was not to create a new
legal order. Rather, the Treaties of Paris (1951)14 and Rome (1957)15 were accepted
to be part of international law. 16 However, the European Court of Justice (ECJ)
subsequently declared that the EU constituted ‘a new legal order of international law’.17
According to the Court, in contrast to ordinary international treaties, the treaties of the
Union created its unique legal system, which became an integral part of the legal

10
O. Amao, African Union Law: The Emergence of a Sui Generis Legal Order (Routledge, 2019)

11
S.B. Ajulo, ‘Sources of African Law’ (2001) 45(1) Journal of African Law 73, 74; M E Olivier, ‘The role of
African Union law in integrating Africa’ (2015) 22 (4) South African Journal of International Affairs, 513.
12
See Ulrich Scheuner, Forward to CJ Mann, The Function of Judicial Decision in European Integration (Nijhoff,
1971).
13
Rita K Edozie and K Gottschalk, The African Union’s Africa: New Pan-African Initiatives in Global Governance
(Michigan State University Press, 2014) , xiii; Tiyanjana Maluwa ‘The Transition from the Organisation of
African Unity to the African Union’ in Abdulqawi A. Yusuf and Fatsah Ouguergouz (eds), The African Union:
Legal and Institutional Framework: A Manual on the Pan-African Organization (Martinus Nijhoff, 2012), 25, 38.
14
Treaty Establishing the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140
15
Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11.
16
R Schutze, From Dual to Cooperative Federalism: The Changing Structure of European Law (OUP, 2013) 3
17
Flaminio Costa v ENEL [1964] ECR 585 (6/64), 593

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

system of Member States and applicable by member State courts. The ECJ concluded
that,
‘by creating a Community of unlimited duration, having its own institutions, its
own personality and its own capacity in law, apart from having international
standing and more particularly, real powers resulting from a limitation of
competence or a transfer of powers from the States to the Community, the
member-States, albeit within limited spheres, have restricted their sovereign
rights and created a body of law applicable both to their nationals and to
themselves.’18
This, in Schutze’s view, represents a ‘middle ground’ between international and
national law, a system considered sui generis and which the EU thinkers labelled
19
‘supranationalism’. Similarly, the establishment of the AU underscores the
advancement of the integration agenda in Africa, which has led to a wider level of
intergovernmental cooperation and shows positive signs of supranationalism in some
spheres. The predecessor organisation of the AU, the OAU, started out as a treaty-
based organisation and thus was part of the international law architecture. However,
the decision to create a Union to replace the OAU marked a significant shift. The legal
order that was created and that is emerging from the AU is assuming greater
importance in Africa with striking features compared to the OAU. There are strong
indications that its structure and legal order will become increasingly ‘sui generis’ in
the same way the EU has evolved. 20 For instance, Tieku has argued that the
composition and competencies of the African Union Commission (AUC) under the
Constitutive Act and the relative independence of the AUC underscores the
supranational credentials of the AU. In support of this contention, he argued that the
ability of the AUC to ‘create regulations that are binding on member states’ and the
central role that the AUC played in the drafting of legal instruments ‘reflect that of a
supranational actor.’21 This contention may be debatable but it increasingly shows the
changing perception of the AU’s capacity to act as a norm entrepreneur at the
continental level.

18
Ibid.
19
R Schutze, From Dual to Cooperative Federalism: The Changing Structure of European Law (OUP, 2013) 3.
20
Supra, Edozie and Gottschalk, 33.
21
T K Tieku, ‘Governing Africa: 3D Analysis of the Africa Union’s Performance’ (Rowman & Littlefield, 2017) 38-
44)

5
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

The decision of the African Court on Human and Peoples' Rights (ACHPR) in Femi
Falana v The African Union22, underscores this point. It is significant that this was one
of the first decisions of the AU Court. The African Court in that case, relying on the
International Court of Justice’s (ICJ) advisory opinion on ‘Reparation for Injuries
Suffered in the Service of the United Nations’ 23 held that, as an international
organisation, the AU has a legal personality separate from the legal personality of its
Member State.24 It is an international person capable of possessing international rights
and duties. It is notable that in defining the status of the AU, the African Court heavily
relied on the precedent of the ICJ in reaching its decision. This enabled the Court to
reach a decision in the case that is broadly consistent with the international legal order
in this respect. It is also worth noting that having a legal personality and capacity in
law were two of the factors that the ECJ considered in the Costa v Enel25 judgment in
holding that the EU represents the creation of a new legal order.

In addition, to the absence of a definition in relation to AU law, it is observed that there

was no attempt to state the sources of AU law in the AU Constitutive Act itself.
However, the Statute establishing the African Union Commission on International Law
(AUCIL) made reference to the ‘laws of the Union’. In Article 4, the Statute, albeit
indirectly and vaguely, did identify certain key sources of AU law and to some extent
it echoes Article 38(1) of the ICJ mentioned below. A reading of the text shows an
implicit recognition of particular sources of AU law in Article 4(a), which are namely
Treaties of the African Union, decisions of the policy organs of the AU, and African
customary international law arising from the practice of member states. Though these
legal sources were merely stated as the focus for the objectives of the AUCIL in its
task of codification and the progressive development of international law, it is observed
that they have immediate relevance as a statutory framework that impacts Member
States. Significantly, the Protocol on the Statute of the African Court of Justice and
Human Rights took a similar approach when it outlined the applicable law of the Court
in Article 31 as follows.

22
Femi Falana v. The African Union Application No. 001/2011.
23
(Advisory Opinion) [1949] ICJ Reports 174
24
Supra, Femi Falana v. The African Union, Paragraph 68
25
Supra.

6
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

‘In carrying out its functions, the Court shall have regard to
a) The Constitutive Act;
b) International treaties, whether general or particular, ratified by the contesting
States;
c) International custom, as evidence of a general practice accepted as law;
d) The general principles of law recognised universally or by African States;
e) Subject to the provisions of paragraph 1, of Article 46 of the present Statute,
judicial decisions and writings of the most highly qualified publicists of various
nations as well as the regulations, directives and decisions of the Union, as
subsidiary means for the determination of the rules of law;
f) Any other law relevant to the determination of the case.’26

Notably, Article 31(1) is similar to Articles 38(1)-(2) of the Statute of the ICJ, which has
entrenched the generally accepted view that the Statute of the ICJ did not enumerate
a formal hierarchy of sources. This view may be applicable to Article 31 in relation to
the sources it outlined.27 However, there are two significant differences due to the
nature of the AU itself. In the first place, the AU Constitutive Act is a constitutional
instrument, and it lies at the foundation of the AU legal order. Its provisions have
constitutional status and thus will have supremacy within its legal order in the areas
that it covers. Second, Article 31 (d) specifically classified judicial decisions, writings
by eminent experts, and regulations, directives of the AU as ‘subsidiary’ sources,
which indicate that they may be lower in the hierarchy compared to the other sources
in Article 31. The constitutional character of the AU Constitutive Act raises the
pertinent question of the nature of such a ‘constitution’ at the continental level.

4. African Union Law as International Constitutionalization

As an emergent legal order, the understanding of the norm emerging from the AU law
may be approached from different perspectives. AU law is a development that is
beyond state level and also has the ambition to unite separate states systems within
its order while respecting the integrity of those states. This makes constitutionalization
and federalism compelling concepts for the understanding of AU law.

26
Article 31(2). Reference should be made when and how the Protocol was concluded and signed
27
KD Magliveras and GJ Naldi, ‘The African Court of Justice’ (2006) 66 ZaoRV 187-213.

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

Constitutionalization here refers to the international dimension as opposed to

constitutionalism at the domestic level. Federalism provides the broad framework for
allocation of powers while constitutionalization provides the principles and rules that
governs the arrangement. In a constitutional legal order ‘power allocations are based
upon divisions of constituted power’ such as in a federalism. 28 However, as
O’Donoghue noted, the extent of partition and the form it takes vary between legal
orders. 29 In the context of the AU, the primary reference point would be the
Constitutive Act. A written constitution is a feature of a constitutional legal order albeit
not in all cases.30

The traditions of federalism played a significant role in the discourse and the
developments that led to the emergence of the AU and its legal order. As Tieku
correctly argued, ‘federal impulses drove the creation of the AU.’31 In his view, the AU
‘lies close to the middle of a continuum between federalism and statistism’ (sic).32 In
addition, Moller has described the AU as ‘a federation in statu nascendi’.33 While the
relevance of the idea of federalism in the design and implementation of the AU has
been acknowledged, no thorough analysis of its role, implications and relevance to the
future of the AU legal order has been undertaken.34 It would be useful to consider how
the philosophy of federalism and constitutionalization informs the AU legal order. This
approach becomes even more significant because one of the key goals of the AU’s
fifty-years plan, Agenda 2063, is to achieve a political union within the continent and
the formation of a continental government.35

Federalism has a notably long history in Africa, starting with the imperial-colonial
federal legacies which employed the concept, although largely unsuccessfully, for

28
Aoife O’Donoghue, Constitutionalism in Global Constitutionalisation (Cambridge University Press, 2014) 17.
29
Ibid.
30
Ibid, p. 8.,
31
T K Tieku, ‘African Union: From Federalism to Fantasy Union’ in John Kincaid and Wilfried Swenden (eds) The
Routledge Handbook of Regionalism and Federalism (Routledge, 2013) 573
32
Ibid.
33
B Moller, ‘Pan-Africanism and Federalism’ (2010) 2 (3) Perspectives on Federalism 38, 62
34
Olufemi Babarinde, The EU as a Model for the African Union: the Limits of Imitation’ Jean Monnet/Robert
Schuman Paper Series Vol. 7 No. 2 April 2007, p. 5; Abdulqawi A Yusuf, Pan-Africanism and International Law
(The Hague Academy of International Law, 2014) 158-159
35
African Union, ‘ Agenda 2063: The Africa we want’ available at
https://au.int/en/Agenda2063/popular_version last visited 20/08/20

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

administrative and political convenience.36 Examples of these include the creation of

the Central African Federation (1953-1963), the amalgamation of the regions that
constituted Nigeria in 1914, and France’s two–tiered federalism’s Afrique Occidentale
Francaise and the Equatoriale Francaise. 37 The federalism idea also manifested itself
in the independence movement in the form of the concept of Pan-Africanism. 38
Historically, there were two strands to Pan-Africanism. The first strand and the earlier
form was driven by the African diaspora with the aim of liberation from slavery and the
unification of Africa. However, the second strand was focused on the anti-colonial
struggle and, more significantly, on the political unification of the continent. These two
strands influenced the establishment of the of the OAU and subsequently the AU as a
unique Pan-African body.

The idea of federalism also led to the attempts to unite sovereign nation States post-
independence. The examples of these attempts include the East African Federation,
Senegambia Confederation and the Union of African States- the first attempt to
federate former colonies of the British and the French. 39 It is posited that these
experiences contributed positively to the establishment of a continental legal order and
its federal or quasi federal features. It is therefore logical that constitutionalization at
the continental level would exhibit to some extent federal characteristics to some
extent.

Instructively, the pre-independence debate and the concomitant Pan-Africanism

concept focused in the main on the question of federation versus statism conception
at the heart of African continental integration.40 Within the discourse about federalism
was the sub-question as to whether an international or US tradition should shape the

36
Michael Burgess, ‘Federalism in Africa: An Essay on the Impacts of Cultural Diversity, Development and
Democracy’ (The Federal Idea, 2012), 20
37
Ibid, 7.
38
Supra, Moller, 55
39
Arnold Hughes. ‘The collapse of the Senegambian confederation’ (1992) 30(2) Journal of Commonwealth &
Comparative Politics 200-222
40
See for example, Opoku Agyeman,‘Pan-Africanist Federalism’, Center for Economic Research on Africa,
Department of Economics, School of Business Administration, Montclair State College, 1991, 25-29

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

integration effort. 41 The reference to the US tradition is notable because of the

influence of the tradition on Pan-Africanism and its proponents. A unique factor in the
pre independence debate in Africa is the historical fact that these ideas sensu stricto
are not traditional in the continent where pre-colonial societies were structured around
a mix of monarchical, religious and collective modes of governance. However, what is
common to the traditions across Africa in one form or another is the emphasis on the
collective and on ‘people’ as a whole in the allocation of powers.42 This emphasis has
percolated into the emergent legal order thus underpinning its foundational principles.
Nonetheless, as the continent approached independence, the idea of federalism prima
facie provided potential solutions to the challenges of independence, managing the
legacies of colonialism and providing a level of unity in diversity.43 The debate resulted
in the compromise that led to the creation of the Organisation of African Unity (OAU),
which is generally perceived to be an international organisation, and the
transformation of that institution into the AU with its somewhat supranational
credentials.44

With regard to the concept of constitutionalization, it is recognised that

constitutionalization has both a legal and political purpose.45 De Wet has argued that,
there is an ‘emerging international constitutional order consisting of an international
community, an international value system and the rudimentary structure for its
enforcement’.46 This reasoning is supported by major international constitutional law

41
Kwame Nkrumah, Africa must Unite (Praeger, 1963)214-215; O. Amao, African Union Law: The Emergence of
a Sui Generis Legal Order (Routledge, 2019) 12- 14; K O Kufuor, African Unification: Law, Problems and
Prospects (Carolina Academic Press, 2016) 18
42
A.N. Allott, ‘African Law’ in J.D.M Derrett (ed), An Introduction to Legal Systems (Sweet & Maxwell, 1968)
131 at 149-150
43
Rita K Edozie and K Gottschalk, The African Union’s Africa: New Pan-African Initiatives in Global Governance
(Michigan State University Press, 2014) 17
44
Tiyanjana Maluwa ‘The Transition from the Organisation of African Unity to the African Union’ in Abdulqawi
A. Yusuf and Fatsah Ouguergouz (eds), The African Union: Legal and Institutional Framework: A Manual on
the Pan-African Organization (Martinus Nijhoff, 2012), 28; Tiyanjana Maluwa, ‘The OAU/African Union and
International Law: Mapping New Boundaries or Revisiting Old Terrain’ Proceedings of the Annual Meeting
(2004) 98 American Society of International Law 232, 233.
45
Aoife O’Donoghue, Constitutionalism in Global Constitutionalisation (Cambridge University Press, 2014)
16;ALREADY CITED A. Peters, ‘The Merits of Global Constitutionalism’ (2009) 16 Indiana Journal of Global
Legal Studies 397.
46
E. De Wet, ‘ The International Constitutional Order’ (2006) 55 International and Comparative Law Quarterly
51

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

scholars such as Fassbender and Klabbers. 47 Notably, Fassbender has argued that
the United Nations Charter has been confirmed and strengthened over the years to
the extent that it must now be taken as the ‘constitution of the international
community’.48 From this perspective global constutionalisation means that key aspects
of constitutionalism at the domestic level have been or are being transposed to the
international plane and exhibited by beyond state level institution such as the AU. It
thus means that such an institution would increasingly display key features of
constitutionalism such as a written constitution, division of powers, the rule of law,
democratic legitimacy and the protection of human rights.49 According to Peters, the
goal of global constitutionalization is the ‘application of constitutionalist principles in
the international legal sphere in order to improve the effectiveness and fairness of the
international legal order’.50 Similarly, O’Donoghue noted that constitutionalization ‘is
employed where a legal order is in a process, over a period of time, from a position
not based upon constitutionalism to one taking upon its cloak’. 51 According to her, the
European Union model ‘is an important example of how constitutionalization evolves
particularly in the frame of subsidiarity’.52 From the foregoing, it is thus compelling to
describe the transitioning from the OAU to the AU and the structural and normative
changes associated with this transitioning as the constitutionalization of the AU legal
order. 53

It is important to note that Fassbender put a caveat on the comparison between

constitutionalism at the domestic level and constitutionalization at the international
level. He argued that international constitutionalization does not replicate
constitutionalism at the domestic level because the task and responsibility at the

47
B. Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36
Columbia Journal of Transnational Law 529; J. Klabbers et al., ‘The Constitutionalisation of International Law
(OUP, 2009) 10.
48
Ibid.
49
Aoife O’Donoghue, Constitutionalism in Global Constitutionalisation (Cambridge University Press, 2014) 16
50
A. Peters, ‘The Merits of Global Constitutionalism’ (2009) 16 Indiana Journal of Global Legal Studies 397.
51
Aoife O’Donoghue, Constitutionalism in Global Constitutionalisation (Cambridhe University Press, 2014)
52
Ibid, 11
53
See also M Olivier “The Emergence of a Right to Democracy – An African Perspective” in Panara C and
Wilson G, The Arab Spring – New Patters of Democracy and International Law, (Leiden: Martinus Nijhoff
Publishers, 2013) 29-52

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

international level differs from the domestic level. 54 In support of this contention,
Walker argued,
‘The point is, that the concept of constitution changes its meaning when it is
transferred and this change of meaning is reinforced by the current structural
changes of the international system: the disaggregation of the state on the one
hand, and the process of sectoralization within international law’.55
While acknowledging the different approaches to the concept of constitutionalization,
the Chapter adopts Peters’ definition of constitutionalization as,
‘…the label for the evolution from an international order based on some
organizing principles such as state sovereignty, territorial integrity, and
consensualism to an international legal order which acknowledges and has
creatively appropriated and – importantly – modified principles, institutions, and
procedures of constitutionalism.’56
Peter’s definition is broadly consistent with definitions that have been put forward by
other constitutional scholars. For instance, Loughlin describes the concept as ‘…the
attempt to subject all governmental action within a designated field to the structures,
processes, principles, and values of a ‘constitution’. 57 As Loughlin correctly noted,
constitutionalism is prominent at the international level today because of the
realisation that ‘the activity of governing is increasingly being exercised through
transnational or international arrangements that are not easily susceptible to the
control of national constitutions.’58

It is that realisation that informs the reform of the basis upon which supra or transitional
bodies operate in ways that lead to constitutionalization. 59 As Loughlin argued the
subject of the constitutionalization of a treaty based body is a major field of study in its

54
B Fassbender, Security Council Reform and the Right of Veto: A Constitutional Perspective (The Hague:
Kluwer International Press, 1998).
55
C. Walter, ‘International Law in a process of Constitutionalization’ in J.E. Nijman and A. Nollkaemper (eds.),
New Perspectives on te Divide between National and International Law (OUP, 2007)
56
Anne Peters, ‘Constitutionalisation’ in Jean d’ Aspremont/Sahib Singh (eds), Concepts for International Law -
Contributions to Disciplinary Thought (Edward Elgar 2017) 141
57
Martin Loughlin ‘What is Constitutionalisation’ in Peter Dobner and Martin loughlin, The Twilight of
Constitutionalism? (OUP, 2010) P.47
58
Ibid
59
Ibid, P63

12
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

own right.60 To support this contention, he referenced major works that have been
undertaken on conceiving the World Trade Organization (WTO) from the
constitutionalization perspective and also on the question of whether the UN Charter
could be considered as the constitution of the international community.61 In that debate
‘international community’ is seen as the surrogate for ‘the people’ in a constitutional
order, while the legal framework or norms that govern the UN is perceived as its
constitution. 62 Perhaps the UN Charter discourse is more apposite to the AU
development. However, it must be acknowledged that what is meant by
constitutionalization would also differ according to institutions such as with the UN, the
EU and the WTO or even the AU.63

Pertinently, Loughlin observed that the EU is the most significant expression of

supranational constitutionalism. According to him, the way in which the EU has
evolved incrementally in competence and transformed from an international
organisation ‘to an entity which has established itself as a vertically integrated legal
order is an important indicator of its constitutionalization’.64 It is noted that Loughlin
conceded that the constitutionalization of the EU remains partial and incomplete65 but
this does not detract from the evidence that the constitutionalization process is
entrenched in the EU. This process of constitutionalization was aptly described as
constitutionalization through integration. The constitutionalization process enabled the
European Court of Justice to hold that the founding treaties of the Community are its
basic constitutional charter. The Court has further expounded on this by its creative
interpretation of the treaties to create constitutional norms.66

The supranational credentials of the AU and its legal order is underscored by the
modelling of the institution on the European Union and its legal order. 67 The

60
Ibid, P64
61
Ibid
62
Ibid, P. 65
63
Supra, Anne Peters, 3
64
Supra, Loughlin, P.65
65
Ibid, p66
66
Ibid, p66. See Parti écologiste “Les Verts” v European Parliament (1986) Case 294/83, [1986] ECR 1339; Van
Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62, [1963] ECR 1.
67
B Fagbayibo, ‘Common problems Affecting Supranational Attempts in Africa: An Analytical Overview’ (2013)
16 (1) PER/PELJ 32; BO Fagbayigbo, A Politico-legal framework for integration in Africa: Exploring the

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

developments surrounding the OAU and the AU and their institutions are a continuum
that has heavily relied on a broad definition of the ideas of federalism and
constitutionalization.68 However, like the EU, the federalism exhibited by the AU and
its constitutionalization process are not directly comparable to federalism at the state
level or confederation, hence the need to develop a unique understanding of these
emergent phenomena.69 The continental legal order at inception was dominated by a
process that is akin to dual federalism which, has shaped its existence to a large extent
but its trajectory has moved largely in the direction of cooperative federalism with the
creation of the AU.70 This is exemplified by the ceding of aspect of sovereign powers
to the centre as solutions to common problems in specific areas such as the regulation
of unconstitutional change of government, human rights, judicial powers, sanction
powers, trade, peace and security. The concept of federalism and constitutionalization,
especially in their supranational dimensions thus provide useful tools for the analysis
of the discourse and its consequences.71

Such an understanding allows for the comparison of the emergent legal order to the
influences that shaped its emergence, in the main, the colonial heritage (Westphalia
State Model) and the European Union legal order. Such an understanding would also
allow for a comprehensive analysis of the legal space that has emerged with the AU
and reaching conclusions on the nature of AU law from that perspective. It would also
allow for the prediction as to the legal trajectory that the AU legal order could take as
the AU and its institutions evolve going forward. In addition, it would allow for a critical
examination of what aspects of constitutional federalism is shaping the development
of the African Union legal order as it develops further.

attainability of a supranational African Union (Thesis submitted to the University of Pretoria, 2010) 39; Rita K
Edozie and K Gottschalk, The African Union’s Africa: New Pan-African Initiatives in Global Governance
(Michigan State University Press, 2014) 33.
68
It is notable that just like the American Constitution, the AU Constitutive Act does not use explicitly the
word ‘federalism’ but nevertheless evolves a federal system.
69
B Fassbender, The United Nations Charter as Constitution of the International Community (1998) 36
Columbia Journal of International Law 529, 558
70
Schutze, From Dual to Cooperative Federalism: The Changing Structure of European Law (OUP, 2013) 3
71
See also Neha Jain, Supranational Federalism: A Study of the European Union Notes and Comments (2002)
14 Student Bar Review 43-51.

14
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

5. African Commission on Human and Peoples' Rights and Cooperative

Federalism
The emergence of the African Commission as a quasi-judicial body and the
subsequent establishment of the African Court could be regarded as an expression of
cooperative federalism at the continental level. This is because it represented a de
facto ceding of aspects of judicial power to the continental level judicial system. The
implication of this is that in the areas where the Commission and the Court have
competence, cases that emanate from domestic jurisdiction could be dealt with at the
continental level.

The African Commission was originally the main mechanism for ensuring compliance
with the provisions of the African Charter. It was established under the Charter as a
quasi-judicial body.72 The Commission was modelled on the European Human Rights
Commission (since abolished) 73 and the Inter-American Commission on Human
Rights. 74 The Commission’s functions are stated in Article 45 of the Charter and
include the promotion of human rights, the protection of human rights under the African
Charter, the interpretation of the African Charter, and any other functions assigned to
the Commission by the Assembly of Heads of State. The Commission has both
protective and promotional responsibilities. However, it is in connection with the
exercise of its protective responsibility by its quasi-judicial powers that is more
important in the context of this chapter. The Commission’s responsibility in this regard
involves receiving communications (cases) on violations of rights protected under the
Charter, communicating them to States and investigating them, with the ultimate goal
of reconciling the parties. Its decisions on cases are also included in the Commission’s
activity report to the Assembly of the AU.

72
Article 30 of the African Charter.
73
The European Commission on Human Rights was abolished by Protocol 11 to the European Convention for
the Protection of Human Rights and Fundamental Freedoms (213 U.N.T.S. 222 as amended).
74
The Inter-American Commission on Human Rights is an autonomous organ of the Organization of American
States (OAS). It was created in 1959 to promote and protect human rights in the Americas pursuant to the OAS
Charter (119 U.N.T.S. 3 as amended) and the American Convention on Human Rights (O.A.S.Treaty Series No.
36, 1144 U.N.T.S. 123).

15
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

There has been a debate on the question of whether the decisions of the Commission
are binding.75 The African Commission itself has been ambiguous in stating the legal
status of its decisions. 76 As noted by Murray and Long, the Commission has
sometimes referred to its decisions as non-binding because of the quasi-judicial nature
of its mandate.77 Nevertheless, the Commission has also suggested that its decisions
are authoritative interpretations of the Charter. Furthermore, it has been argued that
since the Commission’s recommendations are included in its activity report to the
Assembly of the AU, they should become binding upon adoption.78 Relevant to this
debate is the Commission’s practice of granting interim or provisional measures to
79
avoid irredeemable harm. In International PEN and others v. Nigeria, the
Commission held that such provisional measures are binding and should be respected
by Member States thus suggesting a level of bindingness.80

Irrespective of the debate as to whether the decision of the Commission is binding, the
establishment and activities of the Commission shows that the member States were
willing to allow the Commission to exercise some jurisdiction over human rights cases
emanating from domestic jurisdictions. These cases would have originated from
Member States and gone through the domestic remediation process (in most cases)
before being brought before the Commission. The Commission thus exercises its
quasi-judicial power over member States to the extent of its competence in the African
Charter.

For instance, in Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt81, a
complaint was brought on behalf of four women, who were part of a protest in Egypt.

75
R Murray and D Long, The Implementation of the Findings of the African Commission on Human and
Peoples’ Rights (Cambridge University Press, 2015) 24,50
76
Ibid., 50
77
Ibid., 53
78
Ibid., 53
79
Rule 111 of the Rules of Procedures of the African Commission on Human and Peoples’ Rights adopted on the
6th of October 1995 allows the Commission to grant interim provisional orders. See U.O. Umozorike, “The African
Charter on Human and Peoples’ Rights: Suggestions for more Effectiveness” (2007) 13 Ann. Surv. Int’l & Comp.
L. 179 at p.186.
80
See International PEN and Others v. Nigeria, Communication No. No.137/94, 139/94, 154/96 and 161/97
(1998). See also R. Wright, “Finding an Impetus for Institutional Change at the African Court on Human and
Peoples’ Rights” 24 Berkeley J. Int’l L. 463 at p. 471.
81
Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, ACHPR, Comm. No. 323/06 (2011).

16
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

It was alleged that during the protest, the protesters were cornered by the riot police
in such a way that allowed supporters of the government to attack them. In the
circumstances, the women (complainants) were intimidated, insulted and sexually
harassed. All attempts to seek redress in the domestic jurisdiction was frustrated by
the authorities. Unable to obtain redress at the local level, the women submitted a
complaint to the African Commission. They were represented by Egyptian Initiative for
Personal Rights and Interights. The complainants alleged violations of articles 1
(respect for rights), 2 (non-discrimination), 3 (equality before law), 5 (cruel treatment),
9(2) (free expression), 16(1) (right to health) and 18(3) (discrimination against women)
among others. The complainant included in their prayers, the payment of 57000
Egyptian pounds to each complainant. The Commission found the Member State,
Egypt, liable for the violation of several rights of the complainant protected in the
African Charter. Even though, the Commission does not usually award compensation
as it does not have a direct mandate to do so, it went further to request that Egypt
compensate each of the complainants by paying each of them 57000 Egyptian pounds
for the physical and emotional damages and trauma they suffered. In that case, the
Commission not only made a pronouncement on violation of rights in Egypt but also
recommended specific monetary compensation.

6. The African Court on Human and Peoples’ Rights

The need to strengthen the mechanism for the protection of human rights and to
address the limitations and ambiguity surrounding the African Commission’s
procedure led to the establishment of the African Court on Human and Peoples’ Rights
(African Court).82 The Court will be transformed into the African Court of Justice and
Human Rights in the future83, once the protocol establishing the latter comes into force.
The African Court itself was established by an additional protocol to the African Charter
adopted by the Assembly of Heads of State and Governments of the OAU in 1998.84
The Protocol came into force in 2004. The Court is empowered in the Protocol to

82
Supra, African Union, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of
an African Court on Human and Peoples’ Rights.
83
African Union, Protocol on the Statute of the African Court of Justice and Human Rights, 1 July, 2008,
available at: https://au.int/en/treaties/protocol-statute-african-court-justice-and-human-rights accessed 15
July 2021
84
Supra, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African
Court on Human and Peoples’ Rights.

17
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

exercise jurisdiction over all human rights instruments ‘ratified by the States
concerned’. 85 It has been contended that this may include regional, sub-regional,
bilateral and multilateral international treaties.86 This means that where rights are not
adequately protected under the African Charter, recourse could be had to other
international treaties signed by Member States.87

The case of Lohe Issa Konate v. Burkina Faso88 exemplifies the role of the court in
this context. The application in the case alleged the violations of the right to freedom
of expression not only under the African Charter (Article 9), but also the International
Covenant on Civil and Political Rights (ICCPR), (Article 19) and Article 66(2)(c) of the
Economic Community of West African States (ECOWAS) Treaty. The Complainant
was an editor of a magazine. The complainant wrote and published articles alleging
that the local prosecutor was involved in certain acts of misconducts. Subsequently
the Complainant and another journalist were charged with defamation, public insult
and contempt of court. The High Court of the Member State sentenced the
complainant to 12 months in prison and publication of his magazine was suspended
for six months. He was also ordered to pay a fine and damages. The complaint
contended that the laws under which he was prosecuted were inconsistent with the
African Charter, the International Covenant on Civil and Political Rights and the
ECOWAS Treaty, especially the criminalization of defamation. At the preliminary
stage, the Complainant sought and was granted provisional measures to be released
from custody and provided with adequate health care. In its opinion on the merit, the
Court noted that the right to freedom of expression is not absolute. According to the
Court, restrictions on the right may be provided by domestic law but must be consistent
with applicable international norms. Furthermore, such restriction must be to achieve
a legitimate aim and, importantly, it must be proportionate to that purpose. In this case
the Court acknowledged that the restrictions were provided by law and were
sufficiently clear. It further held that the restrictions were put in place to achieve a

85
Ibid., Article 3(1).
86
R. W. Eno “The Jurisdiction of the African Court on Human and Peoples’ Rights” (2002)2 Afr Hum Right Law J.
223 at 226: NJ Udombana, “Towards the African Court on Human and Peoples’ Rights: Better Late Than Never”
(2000) Yale Hum Rts & Dev LJ 45.
87
Ibid, Eno, 226.
88
Application No. 004/2013 (2014).
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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

legitimate aim that was stated to be to protect the honour and reputation of
magistrates, jurors and assessors in the performance of their duties. However, the
Court held that the restrictions were a disproportionate means to achieve the legitimate
aim. According to the Court, proportionality requires a balancing of the interest of the
society with the freedom of the individuals and any means of restriction imposed must
be the least restrictive possible. Furthermore, in the Court’s view, freedom of
expression must be subject to a lesser degree of restriction when it relates to public
debate relating to public figures. In particular, it stated that any punishment for the
damaging of a public figure’s reputation must not be more than the punishment for the
damaging of the reputation of an ordinary citizen. Criminalising the defamation of
certain public figures under the law is therefore disproportionate and unjustifiable. The
Court also held that the state failed to show that the suspension of the publication of
the magazine was necessary and proportionate to protect the reputation of the
prosecutor. The Court found a violation of Article 9 of the African Charter, Article 19 of
ICCPR and Article 66(2)(c) of the ECOWAS Treaty. Consequently, the Court ordered
that the Member State amend its law to conform with the African Charter. According
to the Court, the member State of Burkina Faso was required:
‘to amend its legislation on defamation by repealing custodial sentences for
acts of defamation, and by adapting its legislation to ensure that other sanctions
for defamation meet the test of necessity and proportionality.’89

The order to the Member State to amend its law is a key example of the Court
exercising jurisdiction that directly impact member States. A similar order was made
in The matter of Actions Pour la Protection des droits de l’Homme (APDH) v Republic
of Cote D’Voire where after the finding of a violation of, inter alia, Article 26 ICCPR,
the Court ordered the Member State, Cote d’Ivoire to make a specific domestic law
consistent with the ICCPR.90

Another important feature of the African Court is that unlike the Commission, it has a
direct mandate to award compensation where there has been a violation of the rights
protected under the African Charter. Article 27 of the African Court Protocol provides

89
Lohé Issa Konaté v Burkina Faso App. No. 004/2013 (2014)
90
Ibid, Paragraph 153 (7)

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

that ‘if the Court finds that there has been violation of a human or peoples’ rights, it
shall make appropriate orders to remedy the violation, including the payment of fair
compensation or reparation’. In the exercise of this function, the African Court appears
to be directly performing functions usually reserved for courts at the domestic level.91
The provision in relation to compensation has been further widened in respect to the
African Court under the Malabo Protocol as follows:
‘… the Court shall establish in the Rules of Court principles relating to
reparations to, or in respect of, victims, including restitution, compensation and
rehabilitation. On this basis, in its decision the Court may, either upon request
or on its own motion in exceptional circumstances, determine the scope and
extent of any damage, loss or injury to, or in respect of, victims and will state
the principles on which it is acting’. 92

It is important to emphasise that the AU law role in relation to Member States legal
order is limited. The Commission has generally refrained from considering and
enforcing member State laws itself. It has emphasised that its competence is confined
to the interpretation and enforcement of AU Charter. According to the AU Commission
in Groupe de Travail sur les Dossiers Judiciaires Stratégiques v. Democratic Republic
of Congo

‘Regarding the national laws, the Commission notes that it is not competent to
decide if the actions of the Respondent State are consistent with its national
laws. The Commission is only competent to verify if the national laws and the
Respondent State’s actions are consistent with the African Charter.’93

However, as noted earlier, the jurisdiction of the African Court is wider and the evolving
jurisprudence of the African Court may lead to a more interventionist role by the Court.
Indeed, in Onyachi and Njoka v Tanzania 94 the Court’s competence to evaluate

91
Guiella Pecorella, The African Court on Human and Peoples’ rights and its case law: towards a Supreme
Court for Africa? https://aninternationallawblog.wordpress.com/2015/06/22/the-african-court-on-human-
and-peoples-rights-and-its-case-law-towards-a-supreme-court-for-africa/#_ftn5 accessed 15 July 21
92
Article 45, Malabo Protocol
93
Groupe de Travail sur les Dossiers Judiciaires Stratégiques v. Democratic Republic of Congo, ACHPR,
Communication No. 259/2002 (2013), paragraph 57
94
Application No. 003/2015

20
 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

evidence presented to the Court of a Member State and the appropriateness of the
penalty imposed was challenged on the ground that it required the Court to sit as a
‘Supreme Appellate Court’. Responding to that contention, the African Court held that
it was competent to do so because it has the power to examine whether the
proceedings at the Member State’s Court was in conformity with the fair trial provision
in Article 7 of the African Charter. Nonetheless, the Court acknowledged that it does
not directly apply Member States’ law or examine the constitutionality of domestic
legislation.95

7. Conclusion
As a flexible and malleable concept, federalism is playing a pivotal role in the
constutionalization of not only international relations but also of regionalization. In the
context of Africa, federalism provides an ‘efficient institutional device for political
integration, for ensuring the functioning of pluralistic societies, for protecting minorities,
for solving ethnic, religious and national conflicts, and for answering the need for
peace and international solidarity.’ 96 International constitutionalization imports key
elements of constitutional federalism to the international level. These include the rule
of law, containment of political and potentially economic power through checks and
balances, fundamental rights protection, accountability, democracy and solidarity. The
design of the AU has evolved another strand of federalism in its constitutionalization
process that is peculiar to the African continent. This strand could be referred to as
African federalism97. This underscores the necessity of also recognizing an African
approach to federalism. The emerging tradition of African federalism is influenced by
the history of the continent, its wide diversity of traditions and legal systems and the
multifarious challenges it has faced since independence. The size of the continent
and the diversity of its Member States make federalism an attractive mechanism for
governance. The concept of constitutional federalism underpinned the common value-
based community created at the continental level in Africa.

95
Ibid, paragraph 37-39. See also Mohammed Abubakari v The United Republic of Tanzania, Application No.
007/2013
96
Lucio Levi, ‘Federalism: A Way to Govern Globalization’ (2018) 2 Glocalism: journal of Culture, Politics and
Innovation’ 1,5
97
See for another perspective on this Michael Burgess, ‘Federalism in Africa: An essay on the Impacts of
cultural Diversity, Development and Democracy’ (The Federal Idea, 2012), 20

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 Femi Amao: Framing AU Law through the Lenses of International Constitutionalization and
Federalism

The shift underpinned the increasing allocation of power to the centre and the impact
the constitutional legal order is having or could have on Member States. The shift also
underpinned the emergence of new and significant norms under the AU. These norms
include the non-indifference norm, the norm on unconstitutional change of
government, human rights norms, the responsibility to protect and democratic
constitutionalism. The Constitutive Act of the AU could be conceived as a continental
level social contract that manifests elements of cooperative federalism. Unlike global
constitutionalism, which is fragmented and not united in any one document, the AU
Constitutive Act brings a level of coherence to the AU legal order. The workings of the
African Union Commission and the African Court on Human and Peoples’ Rights could
also be explained as expressions of cooperative federalism in the AU legal order.
Another recent expression of African federalism is the coming into effect of the AU’s
African Continental Free Trade Agreement (AfCFTA). This is the largest free trade
agreement in the world and aims at creating a single market in Africa and facilitate free
movement of businesses and people across the continent.98

98
Agreement Establishing the African Continental Free Trade Area available at
https://au.int/en/treaties/agreement-establishing-african-continental-free-trade-area last accessed 15 July 21;
E Onyema, ‘Reimagining the Framework for Resolving Intra-African Commercial Disputes in the Context of the
African Continental Free Trade Area Agreement.' (2020) 19 930 World Trade Review 446-468

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