The process of election

The process for electing the Commission chairperson can be found in the Rules of Procedure of the Assembly (Rules), which were adopted in July 2002.Footnote ⁶ Rule 38(1) states that “[t]he Assembly shall elect the Chairperson and the Deputy Chairperson by secret ballot and two-thirds majority of Member States”. The Rules further provide for the option of subsequent voting rounds if no candidate secures a two-thirds majority in the first ballot.Footnote ⁷ The eligibility requirements for the positions of chairperson and deputy chairperson are outlined as: “[c]ompetent men or women with proven experience in the relevant field, commensurate leadership qualities and a good track record in government, parliament, international organizations or other relevant sectors of society.”Footnote ⁸ The chairperson and his/her deputy are elected for a four year term which is renewable only once.Footnote ⁹

Functions of the Commission chairperson

The functions of the Commission chairperson derive from the mandate given to the Commission. In this respect, the degree of the powers given to the Commission determines, expressly or impliedly, the extent of the role the chairperson can play in the institutional process. Thus, the functions of the Commission chairperson cannot be discussed without understanding the specific functions of the Commission and the context in which it is expected to operate. Article 3(2) of the Statutes of the Commission (Statutes) mandates the Commission, amongst other functions, to:

These functions highlight the Commission's central role in ensuring the progressive attainment of integration goals and values. The realization of these functions, however, requires a well focused direction. It is within this context that article 7(1) of the Statutes states that the chairperson shall be: “(a) the Chief Executive Officer; (b) the legal representative of the Union; (c) the Accounting Officer of the Commission”.

In addition, article 8 stipulates that the chairperson will, among other things: “chair all meetings and deliberations of the Commission; … (q) consult and coordinate with the Governments and other institutions of Member States and the [regional economic communities], on the activities of the Union; (r) appoint the staff of the Commission in accordance with the provisions of article 14 of [the] Statutes; (s) assume overall responsibility for the administration and finances of the Commission…”

Read together, articles 7 and 8 point to the indispensability of the role of the chairperson in not only shaping and positioning the Commission but also adding impetus to the integration drive.

This begs the question: in practice, why has the chairperson not been able to function effectively? From a macro perspective, a major stumbling block is the (politico-legal) nature of continental integration. As noted above, the AU is a mere intergovernmental organization, where member states remain the sole decision makers.Footnote ¹⁰ In addition to this, there are other specific (technocratic) reasons why the statutory functioning of the chairperson remains hampered.

The first points to the fact that, while the chairperson is designated as the chief executive officer (article 7), s/he has no powers to assign portfolios to the commissioners.Footnote ¹¹ This is done by the Assembly.Footnote ¹² The ability of the chairperson to allocate portfolios is essential for actualizing his or her vision for the institution.Footnote ¹³

The second is the lack of any explicit reference to the relationship between the AU chairperson (who is also a serving head of state) and the Commission chairperson.Footnote ¹⁴ As Lecoutre observes, the 2005 clash between the AU chairperson, Olusegun Obasanjo, and the Commission chairperson, Alpha Omar Konare, stemmed from this omission.Footnote ¹⁵ In this case, the Commission chairperson (Konare) had appointed an envoy to mediate in the Togolese crisis, without prior consultation with the AU chairperson (Obasanjo).Footnote ¹⁶ The latter regarded this as an act of insubordination, and thus declared the appointment “null and void”.Footnote ¹⁷ This tension should, however, be understood within the intergovernmental context within which the AU operates. The fact that the AU chairpersonFootnote ¹⁸ is a member of the principal decision making body, the Assembly, ensures that the absence of any clarity on the relationship with the Commission chairperson can easily be construed as a relationship of subordination: where the AU chairperson is superior.

Thirdly, the provision in article 9 of the Statutes, that the Commission deputy chairperson shall also be in charge of the Commission's administration and finances, overlaps with the function of the chairperson and thus impinges on the chairperson's ability to exercise overall control. Regarding the correct interpretation, the AU 2007 audit report aptly concludes: “the Panel finds no basis for both the perception and practice that the Deputy Chairperson has sole responsibility for the administration and finances of the Commission. In the performance of his/her duties, the Deputy Chairperson is ultimately answerable to the Chairperson who is the Accounting officer of the Commission.”Footnote ¹⁹

Recent reform effort: From Commission to Authority

The Commission's inability to function effectively has in recent times generated a number of debates. The most far-reaching effort to transform the Commission was taken by African leaders at the 12th ordinary session of the Assembly in January 2009, when a decision was made to transform the Commission into the AU Authority (Authority).Footnote ²⁰ However, it is important to note that the Authority had not come into operation as at the time of writing. Under the Authority, the positions of chairperson, deputy chairperson and commissioner would be re-designated president (chief executive), vice president (programmes, finance and administration) and union secretary respectively.Footnote ²¹ The union secretaries would be assigned twelve reconfigured portfolios.Footnote ²² The Authority's responsibilities or areas of jurisdiction can be classified, depending on the political sensitivity of the issues concerned, in two ways.Footnote ²³

The first deals with issues that have little impact on national sovereignty: continent-wide poverty reduction; inter-regional and continental infrastructure; global warming, desertification and coastal erosion; epidemics and pandemics; research/university centres of excellence; and food security. The second covers matters which would have direct impact on state sovereignty: free movement of persons; foreign and defence policy; international trade and negotiations; transnational crime; and peace and security.

It is apparent from these functions that the Commission is being repositioned to undertake supranational activities. It is, however, essential to be mindful of the reality that the Commission (or Authority) can only function effectively within the broader context of the transformation of the AU. The Commission, and indeed the chairperson, will require much more than new titles in order to fulfil the technocratic task of fast-tracking African integration and unity. This article continues by considering the measures necessary for bestowing the Commission chairperson with real powers.

Institutional transformation of the AU

A discussion of the strengthening of the position of the Commission chairperson should begin with a critical analysis of the structure of the AU. In this sense, it is pertinent to understand the matrix within which the AU operates. While a full discussion of the AU is outside the scope of this article, it is important to consider the extent to which the organization's institutional deficiencies impact negatively on the functioning of the Commission chairperson.

As noted earlier, the AU is primarily an intergovernmental organization, because the Assembly, composed of heads of state and government, is the principal decision-making body.Footnote ²⁴ The functions of the Assembly include to: “(a) determine the common policies of the Union; (b) receive, consider and take decisions on reports and recommendations from the other organs of the Union; … (e) monitor the implementation of policies and decisions of the Union …; (f) adopt the budget of the Union…”Footnote ²⁵

In addition, the Executive Council, made up of national ministers, is tasked with coordinating and taking decisions on a wide-range of policies.Footnote ²⁶ Article 7(2) of the Statutes expressly states that the Commission chairperson is “directly answerable to the Executive Council for the efficient execution of his/her function”. As a result, the Commission chairperson is rightly perceived as possessing few or no political and/or legal powers.Footnote ²⁷

At this juncture, it is pertinent to discuss why the need to transfer real powers to the Commission chairperson should be understood within the broader context of the transformation of the organization. The Commission's policy-making function and, more specifically, its power to monitor the implementation of institutional directives require that member states unreservedly and uniformly commit to shared norms and values. There is no point in empowering the Commission (or the Authority) and its chairperson (or president) if the majority of member states are likely to ignore institutional directives and the supposed principles of the AU. The disciplinary measures provided by the AU Constitutive Act seem to be ineffective in the face of rampant erosion of institutional principles.Footnote ²⁸ This point is particularly instructive as the envisaged Authority is to be endowed with wider-ranging powers. The chairperson of the Commission (or president) is expected to superintend a secretariat charged with initiating and monitoring policies on immigration, transnational crime and international relations.Footnote ²⁹

The state of affairs on the continent, largely characterized by bad governance, economic mismanagement, electoral chicanery and the tendency of the Assembly to shield errant regimes,Footnote ³⁰ posits a tough challenge. The culture of routine disregard for AU decisions stems from the institution's lack of a proper monitoring capacity. It is, therefore, imperative that any attempt to strengthen the Commission and its chairperson be preceded by an overhaul of the institutional monitoring and implementation mechanisms, especially with regard to measures to ensure that member states adhere to the stipulated principles of good governance and democratic standards. To enhance the Commission's implementation and monitoring capacity, Anyagafac and Mpyisi suggest a tripartite agreement on the setting of community directives.Footnote ³¹ The parties would include the Commission, the Assembly and the Pan-African Parliament (PAP). The importance of having the Assembly on board derives from the enormous powers it exercises and the influence it can exert on member states to comply.

The relevance of the Commission chairperson (or president) as the chief executive officer of the Commission (or Authority), and consequently the individual who shapes the direction of policies, is dependent on the creation of an environment for the effective operationalization of his/her powers. This point should thus set the tone for the analytical consideration of the transfer of real powers to the Commission and its chairperson.

Eligibility requirements

That the Commission chairperson occupies a strategic position cannot be overstated. The call for the reinforcement of this office thus stems from the realisation that the Commission chairperson has the potential to impact positively on the integration drive. Like the chief executive officer of any private corporation, the Commission chairperson should be an individual capable of delivering specified organizational goals and targets. The detailed nature of the specified requirements speaks volumes of the weight attached to the position. It is against this background that Rule 38(2) stipulates that Commission chairperson should be competent, have commensurate leadership qualities and a good track record in a government or non-governmental field.

Within the context of the discussion on the institutional transformation of the AU, is it necessary to rethink the eligibility requirements? On paper, Rule 38(2) is an impressive provision. It contains elements that any progressive organization would require for selecting its head. However, there is a need to balance these requirements with the nature and realities of the broader institutional framework. In other words, the exigency of fast-tracking African integration, the importance of creating an enabling operational environment and the credibility of the individual should inform the framing of the eligibility requirements. In this regard, the eligibility requirements should be structured within the framework of the candidate's acute understanding of the nature of Africa's politics and development, and the possibility of the effective exercise of the relevant functions. As the 2007 AU audit report notes, “[i]t is imperative that the holders must have a clear vision of pan-Africanism and a personal mission as well as a total commitment in leading the acceleration and fast-tracking of political and economic integration.”Footnote ³²

Although Rule 38(2) provides that the chairperson could be either a man or a woman, it is imperative that measures are introduced to ensure proper gender representation. In this respect, the rule could provide for a rotation policy stipulating that, where the chairperson is a man, the deputy should be a woman. Alternatively, it could stipulate a rolling arrangement where a male chairperson is followed by a female chairperson. The quality of the candidates, male or female, should, however, not be compromised in this process.

It is also crucial to stipulate that the chairperson should come from a member state that fully adheres to the principles and objectives of the AU. These include the strict observance of good governance and democratic standards, and the implementation of core treaties and regulations. This measure is a potential tool for guaranteeing the compliance of member states to institutional rules, since member states are interested in having their citizens elected as the chairperson. In addition, this criterion would signify the organization's commitment to upholding its stated objectives.

Inclusive election process

The election of the Commission chairperson is one of the primary functions of the Assembly.Footnote ³³ The AU's intergovernmental matrix ensures that member states, through the Assembly, have the sole power to nominate and appoint the administrative head of the AU. In addition, the Statutes state that the Commission chairperson is answerable to the Executive Council, an intergovernmental structure, for the efficient execution of his/her function.Footnote ³⁴ While this state of affairs is understandable within the framework of a minimalist approach to integration, the AU's supranational aspirations require more than this.

The move towards granting the AU the powers to make policies above nation states inexorably borders on the question of the legitimacy of the person(s) who control the policy agenda. If the Commission chairperson (or president) is expected to exercise autonomous responsibility over directing and shaping transnational policy focus, then it is pertinent that he is not only answerable to the Executive Council. The reasoning behind this is that, if these policies are expected to impact not only on governments but also the citizens of member states, then such citizens should have a direct or indirect role in the process of electing the chairperson. In this respect, it is essential that the process of election stipulates a mechanism for ensuring an inclusive election process.

In order to ensure an inclusive process for electing the Commission chairperson, it is important to consider how powers should be shared between the Assembly and the PAP. The PAP is the AU's legislative body; it is currently composed of 265 representatives, who are elected by the legislatures of the 53 AU states rather than being directly elected in their own capacity.Footnote ³⁵ It is, however, important that, for the PAP to participate meaningfully in the process for electing the Commission chairperson, in its capacity as the representative of the African populace, there is a need for its own members to be directly elected.Footnote ³⁶ The legitimacy of the PAP to exercise control over the process of electing the Commission chairperson is dependent on whether African citizens are involved in directly electing the individuals who represent them in Midrand (where the PAP secretariat is situated).

How then should powers be shared between the Assembly and the PAP with regard to electing the Commission chairperson (or president)? To ensure the feasibility of the transfer of powers by the Assembly, it is essential that this body retains the power to nominate the candidates for the position of the Commission chairperson. In this respect, the Assembly will be responsible for identifying suitable candidates and for forwarding the best five candidates to the PAP for election. The PAP should then scrutinize the candidates by subjecting them to questions from both its members and civil society. This process would enable the African public to be aware of the credibility, pedigree and quality of the chairperson. After the PAP has elected the best candidate through a majority voting system, his or her name should then be forwarded to the Assembly, which would be tasked with presenting the successful candidate to the public. This suggestion reflects the need to balance the power structures of the AU between the intergovernmental (the Assembly) and the supranational (the PAP).

In the event of serious misconduct on the part of the Commission chairperson, both the Assembly and the PAP should establish a joint task unit, composed of selected members of the Executive Council and the PAP, to vote on the removal of the chairperson.

Hybridized functions

Having considered how the eligibility requirements and the election process can impact on the relevance of the office of the Commission chair, the next issue is to consider the nature of the functions to be exercised by the chairperson. The clear point that has emerged from the foregoing discussion is the connection between the effective exercise of functions by the Commission chairperson and an institutional overhaul of the AU. Closely related to this is the need to ensure institutional balance within the AU. Institutional balance simply implies a framework that recognizes the primacy of nation states in international law/relations and carefully balances this with the need for international organizations to exercise certain supranational functions.Footnote ³⁷ Put differently, the imperative of exercising policy-making functions above nation states should not override the active input of member states in the decision-making process.

The chairperson's functions should reflect a balance between intergovernmentalism and supranationalism. In other words, the powers of the chairperson should range from exclusive authority in some areas to co-decision making powers with other AU institutions. In this regard, it is important to consider two issues: how the chairperson controls the Commission (or Authority); and the exercise of power in relation to other AU structures (inter-institutional relations).

Effective management by the chairperson is vital for ensuring that the Commission is positioned to occupy the driving seat to steer towards successful integration. A key step to achieve this is to ensure that the chairperson exercises the power to assign portfolios to his/her commissioners (or union secretaries).Footnote ³⁸ As the chief executive officer, the chairperson is best placed to identify the strengths of his/her team and how qualified they are for their assigned positions. In addition to this, the chairperson should have the authority to reshuffle the “cabinet” and, if necessary, force the resignation of an underperforming commissioner.Footnote ³⁹ There is a strong nexus between the chairperson's power to assign portfolios and the effective control of the Commission's policy agenda. The act of assigning portfolios is usually the first step in the process of shaping policies. The composition of the “cabinet” reflects the direction or “road-map” of the chairperson's policy focus. The commissioners' competence in relation to their assigned posts will determine the feasibility of attaining policy objectives. This also impacts on the efficient administration of the secretariat.

Another important point that touches on the effective administration of the Commission is the chairperson's control over the New Partnership of Africa's Development (NEPAD) and the African Peer Review Mechanism (APRM). Now that both these institutions have been incorporated within the AU structure,Footnote ⁴⁰ it is essential that AU policy documents outline the role of the chairperson in coordinating their functions and incorporating their reports and programmes into the Commission's agenda. The chairperson should in this case be able to instruct the heads of both institutions to carry out policy research to be submitted for consideration. In addition, the chairperson should be tasked with the presentation of their reports, with the power to delegate this function.

In terms of inter-institutional relations, it is critical to consider the Commission chairperson's relationship with other power structures of the AU and how the chairperson can exercise his/her functions in this respect.

The first relationship to be considered is with the chairperson of the AU. As indicated earlier, the relationship between the Commission chairperson and the office of the AU chair is not dealt with in any of the organizational documents.Footnote ⁴¹ The importance of stipulating the nature of the relationship lies in the fact that the Assembly, which the AU chairperson represents, remains the principal body of the AU and thus holds the key to the efficient functioning of the organization. The question therefore is how this should be rectified.

The AU 2007 audit report suggests the institutionalization of the relationship through the establishment of an office, continentally and nationally, charged with coordinating the relationship.Footnote ⁴² The creation of a bureaucratic framework for regulating the relationship is however not sufficient; the nature of the relationship also needs to be elaborated. In this regard, it is essential to identify the particular roles of the Commission chairperson in the determination of issues by the Assembly. Illustratively, the Commission chairperson should actively participate in the determination of common policies, the appointment of commissioners and the implementation of AU policies.

Because these issues impact on the policy-making functions of the Commission and also the effective exercise of control over the Commission's policy agenda, it is pertinent that the Commission chairperson plays a crucial role in this process. For example, the determination of the parameters of common policies should take into account the technical submission of the Commission chairperson. Also, the appointment of commissioners should be based on the report of the Commission chairperson and his/her deputy on the particular needs of the Commission. On the implementation of AU decisions, the Commission chairperson should head the technical body tasked with assessing the level of implementation and recommending disciplinary measures.

Another function which needs to be devolved to the Commission chairperson is the representation of the AU. In this respect, the Commission chairperson should be empowered to represent the AU at fora where issues relating to the competences of the Commission are discussed. These include policy meetings on development, trade and climate issues. Representation should also include the mandate to determine, as the head of the Commission, the AU's position on these issues. However, issues which remain in the intergovernmental domain, such as foreign policy, should be handled by the Assembly or any other institution to which it delegates the function.

The second relationship is that between the Commission chairperson and the PAP. As the body that represents the African populace in the AU, the PAP should be positioned to exercise oversight functions over the Commission. As explained above, the PAP should play a role in the election and removal of the Commission chairperson, his/her deputy and the commissioners. The interface between the Commission chairperson and the PAP should also be institutionalized. This is important to minimize the incidence of conflict, especially in areas where both parties have competence to make decisions. In this regard, it is important that the Commission chairperson has a parliamentary representative within the PAP secretariat. The task of such an official would be to identify areas of potential conflict and collaboration. Such an early warning mechanism would ensure that the Commission chairperson is abreast of developments within the PAP, especially on how they could impact on the Commission.