PRIVILEGES AND IMMUNITIES OF AFRICAN UNION AS AN INTERNATIONAL ORGANIZATION

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PRIVILEGES AND IMMUNITIES OF AFRICAN UNION AS AN INTERNATIONAL ORGANIZATION

INTRODUCTION

It is not uncommon for one to hear time and again about the immunities enjoyed in the international plane. In not a few instances, different commentators showed their reservations about international immunities. The basic reason that is usually related to such hesitation is the concern of national security. Of course, if not properly manipulated, international immunities might open doors for subversive activities of multifaceted characters.

Despite all concerns that may go against the notion of international immunities, it has become a matter of common form for the constitutions of international organizations to adopt as the measure of the privileges and immunities to be accorded on the basis of the functional principle that the organization is to „enjoy in the territory of each of its members such privileges and immunities, as are necessary for the fulfillment of its purposes‟ and that representatives of members and officials of the organization shall „enjoy such privileges and immunities as they are necessary for the independent exercise of their functions.‟

International organizations, being established by the common will of states, are granted immunity in order to ensure they can carry out their mission independently. In this context, certain individuals appointed to work for these organizations in an official capacity may be granted a special status.

The immunity of international organizations is determined by the provisions of the organization’s statutes, of any possible protocol on privileges and immunities entered into between the organization’s members as well as of the headquarters agreement concluded between the organization and its host state.

Convinced of the importance of granting adequate Immunities and Privileges, as well as the issue of the Organization of African Unity Laissez-Passer to personnel of the

Organization of African Unity Specialized Agencies to enable them to perform their functions efficiently in the territories of the Member States of the Organization of African Unity,

Considering that the Organization of General Convention Privileges and Immunities (hereinafter referred to as the Convention) does not contain provisions for granting of

Privileges and Immunities including the issue of the Organization of African Unity Laissez-Passer to officials and other staff members, and travel certificates to experts and non- nationals of the members of the OAU Specialized Agencies hereinafter referred to as Agencies,

Considering that such immunities and privileges as are granted to the Organization of African Unity officials will be adequate for the officials of the Agencies for the efficient performance of their functions in the territories of the Organization of African Unity Member States, have agreed as follows:

For the purpose of this Protocol the word “Official” means any person employed on a permanent basis at the professional level. For the purpose of this Protocol, the word “Expert” means any person other than an official who owing to his special qualifications is recruited on a temporary basis to perform a specific job.

PRIVILEGES AND IMMUNITIES OF AFRICAN UNION AS AN INTERNATIONAL ORGANIZATION

Apart from the immunities that the African Union enjoys as an organization, its personnel has respective privileges and immunities. These privileges and immunities are meant to enable them to perform their functions within the African Union with a dignified form that is free from any sort of interference by a state in whose jurisdiction may the African Union personnel find themselves in an official capacity.

The privileges and immunities of the African Union personnel would be reflected on upon dissecting such personnel into three categories. The first category is that of the representatives of member states of the African Union. Secondly, the officials of the African Union would be dealt with. Finally, the privilege and immunities of experts performing specific missions of the African Union would be discussed.

Representatives of Member States

Obviously, member states of the African Union are juridical entities. As a juridical person, they naturally demand a physical person as a representative who in different levels represent the state and carry out its activities in relation to the African Union. These representatives of member states have to be accorded proper protection to safeguard the independent exercise of their functions in connection with the African Union. Bearing this in mind, the General Convention on Privilege and Immunities of the OAU (AU) provides a long list of privileges and immunities of the representatives of member states. For a conclusive understanding of their privileges and immunities, let’s look at  Section C, Article V of the Convention:

Representatives of Member States

1.     Representatives of Member states to the principal and subsidiary institutions, as well as  to the Specialized Commission of the Organization of African Unity, and to conferences convened by the Organization, shall while exercising their functions and during their travel to and from the place of meetings, be accorded the following privileges and immunities;

(a)    Immunity from personal arrest or detention and from any official interrogation as well as from inspection or seizure of their personal baggage;

(b)    Immunity from legal process of every kind in respect of words spoken, written or acts performed or votes cast by them for and in the exercise of their functions

(c)    Inviolability for all their papers and documents and the right to use codes and to receive papers or correspondence by courier or in sealed bags;

(d)    An exemption in respect of themselves and their spouse form immigration restrictions, aliens registration and from national service obligations in the state they are visiting which they are passing for and in the exercise of their functions;

(e)    The same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;

(f)     The same immunities and facilities in respect of their personal and official baggage as are accorded to diplomatic envoys;

(g)    Such other privileges, immunities, and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage) or from exercise duties or sales taxes.

2.     In order to secure,  for the representatives of Members to the principal and subsidiary  institutions as well as to specialized commission of the Organization of African Unity and to Conferences convened by the Organization, complete freedom of speech and independence in the discharge of their duties, the immunity from legal process in respect of words spoken, written or votes cast, and all acts done by them in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer the representatives of Members.

3.     Where the incidence of any form of taxation depends upon residence, periods during which the representatives of Members to the principal and subsidiary institution as well as to the Specialized Commission of the Organization of African Unity and to Conferences convened by the Organization of African Unity are present in a State for the discharge of their duties shall not be considered as periods of residence.

4.     Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the Organization of African Unity. Consequently, a Member not only has the right but is under a duty to waive the immunity of its representative in any case wherein the opinion of Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.

5.     The provisions of paragraphs 1, 2 and 3 of Article V are not applicable as between a representative and the authorities of the State of which he is a national or of which he is or has been the representative.

6.     In this article, the expression “representatives” shall be deemed to include all delegates, deputy delegates, advisers, technical experts and secretaries of delegations.

SUMMARY

As an international organization, the African Union has its own independent existence as distinguished from its member states. However, the nature of its functions is of such a nature that can

only be performed within the jurisdiction of any of its member states. If [i]the Union is made subject to such national jurisdictions, this will defeat the very purpose of creating the African Union as a separate legal entity. This calls for the need to accord privileges and immunities to the African Union.

The immunities of the African Union may, for the purpose of convenience, be classified into two categories. These are the immunities that the Union has as an organization and the privileges and immunities of its personnel in different capacities. In the former category, we may speak of the immunities of the African Union Organization in respect of its property, assets, and funds; the inviolably of its premises and archives; its immunity towards currency and fiscal matters; and the legitimate privileges that it requires to enjoy pertaining to its communications. With regards to privileges and immunities of its personnel, there are three categories. These include the privileges and immunities of Representatives of Member states, officials of the African Union and experts discharging a special duty for the African Union.

ENDNOTES

Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity, 3^rd Revised Edition, Martinus Nijhoff Publisher, 1995. 9.

 Henry G. Schemers, International Institutional Law, Volume I, structure, Sixth off International Publishing Company, 1972.

 C. Wilfred Jenks, International Immunities, Stevens and Sons Limited, 1961.11.

 Kuljit Ahluwalia, The Legal Status, Privileges, and Immunities of the Specialized Agencies of the United Nations and Certain other International Organizations, Martinus Nijhoff, 1964.12.

 Blackstone‟s, International Law Documents (7thedition)13. Malcolm N. Shaw, International Law (5thedition, 2003) 14.

 Ian Brownlie, Principles of Public International Law, (6th edition, 2003)15.

 Lorence W. Gormley, Introduction to Law of the European Communities, (3^rd ed.)16.

 William R. Slomanson, Fundamental Perspectives on International Law (5thed., 2007

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