CHAPTER 4: CONSTITUTIONALISM AND THE RULE OF LAW 4.1 Introduction This chapter examines the practice of constitutionalism and the rule of law in Member States and the effectiveness of the efforts of the African Union to enhance implementation of these governance ideals on the continent. 4.2 Principal African Union Instruments on Constitutionalism and the Rule of Law The Constitutive Act establishes the objectives of the African Union, which include the promotion of democracy and good governance, the protection of human rights, and the promotion of peace, security and stability on the continent. 16 Significantly, the Constitutive Act defines a number of principles to guide Member States in their endeavours to realise the objectives of the Union. These principles include: sovereign equality and interdependence among the Member States, the participation of the people of Africa in the activities of the Union, non-interference by Member States in the internal affairs of other Member States, the promotion of gender equality, and the condemnation and rejection of unconstitutional changes of governments.17 Even though the AU Constitutive Act respects the principles of sovereignty and non-interference by a Member State in the internal affairs of another, it recognises the principle of non-indifference, which is “the right of the Union 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”18, as well as a serious threat to legitimate order to restore peace and stability. The main instruments for promoting constitutionalism and the rule of law are: The African Charter on Human and Peoples’ Rights, The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, The African Charter on Democracy, Elections and Governance, The Declaration on Democracy, Political, Economic and Corporate Governance and The African Charter on Values and Principles of Public Service and Administration. Table 2, below, shows the status of the principal AU instruments regarding constitutionalism and the rule of law. 16 17 18 Constitutive Act of the African Union, Article 3. Constitutive Act of the African Union, Article 4. Constitutive Act of the African Union, Article 4 (h). Page 41 of 96