DIRCO on IBSA Fund Agreement; Protocol on Pan African Parliament; with Deputy Minister

Meeting report

The Chairperson welcomed Members and the rest of the attendees to the virtual meeting. He welcomed South Africans observing the meeting from various platforms that Parliament makes available in the context of transparency and strengthening democracy.

The meeting agenda for the day was adopted.

Apologies were received from the Minister of International Relations and Cooperation, Dr Naledi Pandor, who was attending the Presidential Economic Retreat in Bela-Bela, Limpopo, Deputy Minister, Ms Candith Mashego-Dlamini, who was on a work visit at Bembe Municipality and Ms B Swart (ANC), who was unable to attend the meeting due to another commitment;

DIRCO Briefing: The Agreement between the Government of the Republic of India, the Government of the Federative Republic of Brazil, and the Government of the Republic of South Africa (IBSA Fund Agreement)

The Deputy Minister of International Relations and Cooperation, Mr Alvin Botes, thanked the Committee for the opportunity. He said the Department wanted to highlight to need for the PC to intervene in the matter of the Pan-African Parliament (PAP), especially as it relates to the Protocol to the Constitutive Act of the African Union (AU). There have been challenges in the past which prevent responsibility – especially in management and leadership. DIRCO is ambitious and hopes that the 2014 protocol will be adopted, which underlines the centrality of the institution. This, of course, relates to good governance.

The 2001 Protocol to the Treaty is about establishing the African Economic Community and the Pan-African Parliament. The 2014 Protocol is a key instrument to strengthen the mandate of PAP - which currently has consultative status as an organ of the African Union.

The Department also wanted to acknowledge immediately that it is not necessarily at the point where the Pan-African Parliament can substantially fulfil its intended role as a legislative organ of the African Union. The 2014 Protocol will also focus on and strengthen the rule of law on the African continent. It aligns with the six priorities of deepening democracy and good governance on the African continent. DIRCO is pleased that the Protocol will be submitted for consideration and approval by the National Assembly and NCOP as part of the ratification process.

DIRCO therefore hopes that the National Assembly and the specific processes will be addressed with urgency. Secondly, the IBSA Fund, and the interest in the partnership between India, Brazil and South Africa, is really an instrument of solidarity with the South-South Cooperation.

Deputy Minister Botes concluded by saying that the United Nations Office for the South-South Cooperation has a special role in complementing this initiative's work.

The Chairperson thanked Deputy Minister Botes for his presentation. He then acknowledged that the Committee was aware of the matter, as discussed in 2019—the wording format needed to be amended to allow the Agreement to pass.

The Chairperson asked Ms Dineo Mosala, Committee Content Advisor, to provide further information on the matter from a legal point of view.

Ms Mosala asked to speak to the Chairperson separately before he proceeded with his request, as she believed there was something to discuss before she made any input.

[The meeting was paused for a few minutes as Ms Mosala and the Chairperson were deliberating privately]

The Chairperson resumed the meeting and assumed Members of the Committee were familiar with this matter of disagreement between Brazil, South Africa, and India. There must be a way forward. He asked the Ministry to present article by article to allow an opportunity for discussions to take place after the articles had been presented.

The Director-General of the Department of International Relations and Cooperation (DIRCO), Mr Zane Dangor, allowed Ms Sindiswa Mququ to continue the presentation.

Ms Sindiswa Mququ, Chief Director: Central, South & South East Asia, DIRCO, greeted all the attendees and said that the presentation gave a fully summarised version of what she wanted to speak about. She confirmed that the matter was presented to the Portfolio Committee in 2019. However, she asked if the Committee wanted her to go back to the actual presentation in 2019 or go straight to the challenge that led to the process not moving forward.

The Chairperson asked the Committee Members for their input. He suggested the Department give an overall summary and address the main issue raised in the past.

Rev. K Meshoe (ACDP) suggested that the Department give an overview of what happened.

Ms Mququ said the IBSA Forum was formed in 2003, and the IBSA fund was created in 2004 as a framework that contributes to the capitalisation of the IBSA Fund. IBSA Forum receives donations or contributions from each of the IBSA member states of $1 000 000 per year. “However, government procedures had to be carried out so that we ensure that the money is accounted for by the parliaments of the three countries.” As a result, the signing of the IBSA Fund Agreement is mandatory, and it was prepared a long time ago. In 2017, the three countries had an opportunity to sign the Agreement.

The wording of the Agreement reflected the preparation of the document before 2017, and it must reflect the Sustainable Development Goals, not the Millennium Development Goals. The Department was already working within the framework of the Sustainable Development Goals.

DIRCO wants to update the objectives of the Fund, which is to support the international development agenda, looking specifically at working with the South-South Cooperation. The aim is to support Least Developed Countries (LDCs) and contribute to poverty reduction programmes.

The IBSA Fund concretises the expressions of solidarity and, at the same time, strengthens South-South cooperation. The Agreement is in line with one of the pillars of our foreign policy. It is South-South cooperation and South Africa is the signatory. This is an expression of South Africa's National Development Plan: Positioning a better South Africa in a better world and a better continent. DIRCO has looked at the strategic direction of the IBSA Fund and noted that the current balance is $2.3 million. “We reviewed and presented proposals from Lesotho and Mozambique this year that also contribute to the same goal of poverty alleviation and economic development in impoverished African countries.” The African continent is the largest recipient of funds in terms of projects.

The bone of contention in 2017 was that DIRCO needed to go back and correct what was set out in the Agreement as the Millennium Development Goals. DIRCO consulted its partners, Brazil and India, on this matter. There was an internal consultation through DIRCO and the Office of the State Law Advisor on International Law. In the process, DIRCO was advised as follows: Brazil and India have ratified the IBSA Fund agreement. Therefore, it is not possible for South Africa to amend the text because that would mean that the other countries that have ratified the Agreement would be held back by South Africa in terms of their Millennium Development Goals.

Thirdly, legal advisors have advised DIRCO that it cannot be amended as the Agreement has not yet entered into force. Once it has come into force, whoever has brought it into force can add an amendment to the main Agreement to make that correction.

This was why DIRCO presented the same Agreement as in 2019, without the changes effected as per recommendations by the Portfolio Committee. DIRCO is requesting the Portfolio Committee consider supporting and ratifying the Agreement. DIRCO is, in fact, imploring the Portfolio Committee to make this consideration informed by the importance of this IBSA Fund itself – also to ensure good governance in terms of accountability from the South Africa point of view.

The Chairperson asked if the DG wished to add to what Ms Mququ had said.

The DG had nothing to add. His colleague had already pointed out thoroughly that the Agreement was made in the old text format, and it was very difficult to change it. Therefore, the request was for the Portfolio Committee to consider the Agreement with the old text format included.

The Chairperson said that when he sought legal advice point of view on this matter, he received the same feedback as presented by Ms Mququ. The legal advice was, in fact, that the text amendment can be done after the ratification.

Discussion

Mr D Bergman (DA) said that there was not much to discuss without the changes being implemented because the Committee discussed the same matter in the past. “From my side, like the IMF, when funds are given, there are conditions that are usually attached to it.” Some conditions are strategic in giving the money. What are the benefits for South Africa being on the IBSA Fund?

Rev. Meshoe asked for further clarification. For the proposal to make changes – the presenter told the PC that the Agreement has not entered into force. It is difficult to understand how the Agreement can be proposed via an addendum. It is also difficult to understand that the Agreement was first entered into in 2019, yet it has taken almost three years to get into force. The proposal that South Africa wants to make might not be attended to for another three years, as it has too long to bring it into force. What has been causing the delay?

Mr B Nkosi (ANC) said his understanding is that when the presentation was made to the PC in 2019, the Committee identified that the Agreement refers to Millennium Development Goals. The Department was advised to go and seek a revision, and it was the Committee that requested the Department pursue it. It is impossible to do the amendment currently to reflect what the PC is requesting. The only window open for PC or the country to make amendments is after the PC has ratified the Agreement. The Department can then make the amendment to reflect Sustainable Development Goals and not Millennium Development Goals.

The Agreement is a good model of good governance for development projects because funding administration takes place through a multilateral organisation or multilateral approach in the UN, where good governance is ensured. It is about implementing projects in South-South Cooperation that are scalable, replicable, and contribute to poverty alleviation and exchange of ideas. 

The Chairperson thanked Mr Nkosi and expressed that he had the same views as him. The understanding is that the three countries must be on the same wavelength regarding legal imperatives attached to legislative processes. One country cannot move ahead of others, as this is a sisterly agreement among the three countries. He also asked if the DG had something to say before the meeting moved another item on the agenda.

The DG said there would be a legal opportunity to make amendments once South Africa has ratified.

The Chairperson concurred by saying the legal processes are complex and might not be easily understood, especially by ordinary people.

Mr Nkosi asked when the ratification would take place. What has been the challenge that has caused the ratification to take so long?

The Chairperson responded by saying that once recommendation has been made and passed through Parliament, the Department will accordingly take their counterparts into confidence.

The meeting moved to the next item on the agenda.

DIRCO on the Protocol the Constitutive Act of the African Union Relating to the Pan-African Parliament of 2014

Mr Luvuyo Ndimeni, Director: African Union, DIRCO, said that the Constitutive Act of the African Union (AU) of 2000, in Articles 5 and 17, provides for establishing its organs, including the Pan-African Parliament (PAP). The establishment of the Pan-African Parliament aims to ensure the full participation of African people in the development and economic integration of the continent.  

Article 17 of the Constitution Act also provides that the composition, powers and functions, functions and organisation of the PAP shall be defined in a Protocol Relating thereto. The 2001 Protocol to the Treaty Establishing the African Economic Community, relating to the Pan-African Parliament of 1991, established a Pan-African Parliament and outlined its composition, functions, powers, and organisations.

DIRCO on the Legal Framework of the Pan-African Parliament

-The current Legal Framework within which the PAP operates is the 2001 Protocol of the Treaty Establishing the African Economic Community Relating to the Pan African Parliament.

-The ultimate aim of the PAP shall be to evolve into an institution with full legislative powers whose members are elected by adult suffrage. However, until Member States of the AU decide otherwise by an amendment to the current Protocol, the PAP shall have consultative and advisory powers only.

When it enters into force, the Protocol to the Constitutive Act of the AU Relating to the Pan African Parliament of 2014 will replace the above-mentioned 2001 Protocol to the Treaty Establishing the African Economic Community Relating to Pan-African Parliament. Its provisions are aimed at strengthening the current provisions of the 2001 Protocol. Most importantly, it determines under Article 8 on the Functions and Powers of the Pan-African Parliament that it shall be the legislative Organ of the AU.

DIRCO on Status of Ratification of the Protocol to the Constitutive Act of the African Union Relating to the Pan-African Parliament of 2014

The following Member States have ratified the 2014 Protocol:

-Benin, Cameroon, Chad, Equatorial Guinea, Ghana, Gambia, Madagascar, Mali, Saharawi Arab Democratic Republic, Sierra Leone, Somalia, and Togo.

-South Africa signed the 2014 Protocol in 2019 and is in the process of ratifying it.

-Twenty-eight AU Member States are required to ratify the 2014 Protocol for it to enter into force. The Protocol has been tabled for Cabinet for consideration and submission to the Parliament for ratification.

DIRCO on the areas in which the 2001 Protocol is being strengthened

-Article Four of the 2014 Protocol provides that, of the five (5) elected members by each Member States, at least two shall be women, as against the current arrangement – which provides for at least one shall be a woman. Further, a delegation that does not satisfy this requirement shall not have a right to be accredited for representation in the Parliament.

-In Article Five and on the tenure of office of a member of the PAP, it is determined that a term of a member shall be five (5) years and they shall be eligible for re-election for one (1) term only. It also outlines further circumstances under which a member's term of office shall cease, which includes conviction by a court of competent jurisdiction of an offence involving fraud, dishonesty, or moral integrity and sentenced to a term of imprisonment exceeding six months, and representation of a State Party that is suspended from participating in the activities of the AU. The article also outlines modalities for the removal of the members of the PAP on the above-mentioned grounds.

-Under Article Eight on the Functions and Powers of the PAP, it is further determined that it shall be a legislative organ of the AU. However, the Assembly of Heads of State shall determine the subject/areas on which PAP may propose Draft Model Laws.

-The PAP may make proposals on the subjects/areas on which it may submit or recommend Draft Model Laws to the Assembly for its consideration and approval.

The 2014 Protocol has elaborated modalities for appointment of the PAP Bureau and its functions in Article 12, while Article 15 provides for periodicity of the PAP sessions.

-Article 10 further clarifies that allowances for the Pan-African Parliamentarians shall be paid by their respective State Parties. Currently, Article 10 of the 2001 Protocol provides for allowances, but it is silent on whose responsibility it is to pay such allowances.

-Article 17 provides that the Seat of the PAP shall be located in the Republic of South Africa. The PAP may convene in the territory of any Member States at the invitation of that Member State.

-Article 21 provides that the African Court on Human and Peoples Rights shall have the jurisdiction over all questions of interpretation of the 2014 Protocol.

-Modalities for the Amendment/Revision of the 2014 Protocol Review of the Protocol and transitional arrangements are provided in Articles 25, 26 and 27 respectively.

The DG added that the changes do not pose any obligations within conflict nor are they contradictory to domestic and national laws – particularly given that South Africa is constitutional and governed by constitutional supremacy. It also does not contradict South Africa's international obligations. The presentation covered all the matters that DIRCO wished to present to the Committee.

The Protocols were acknowledged as presented by the Portfolio Committee.

Since the Committee had approved the Two International Treaties, DIRCO had draft reports on the agreements that the Committee was asked to consider and adopt to accelerate the processes.

Closing Remarks

The Chairperson remarked that the Department has state bureaucrats who deeply understand the imperatives of the revolution in the execution of their mandate.

The DG said the Chairperson’s characterisation was correct because it applies to foreign services. DIRCO has a corresponding obligation to ensure the method for global solidarity, especially when it comes to South-South Cooperation... (mostly inaudible due to network challenges)

Deputy Minister Botes was disconnected by a poor signal

The Chairperson said that the PC understood the gist of the closing remarks by Deputy Minister Botes, which were about reasserting the agenda of Pan-Africanism. He thanked DIRCO for honouring the invitation to present its briefings to the Portfolio Committee and for the professionalism displayed during the meeting.

DIRCO delegates were released from the meeting, and the Committee continued with the adoption of drafted reports. 

Committee Reports

The following reports were presented to the Committee and were adopted by the Committee.

Report of the Portfolio Committee on International Relations and Cooperation on the Protocol to the Constitutive Act of the African Union Relating to the Pan-African Parliament

The Portfolio Committee on International Relations and Cooperation, having considered the request for approval by Parliament of the Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament, recommends that the House, in terms of section 231(2) of the Constitution, approve the said ProtocolProtocol.

The report was considered and adopted.

Report of the Portfolio Committee on International Relations and Cooperation on the Agreement Between the IBSA Fund for the Alleviation Of Poverty and Hunger (IBSA Fund Agreement)

The Portfolio Committee on International Relations and Cooperation, having considered the request for approval by Parliament of the Agreement between the Government of the Republic of India, the Government of the Federative Republic of Brazil and the Government of the Republic of South Africa, on the IBSA Fund for the Alleviation of Poverty and Hunger (IBSA Fund Agreement) recommends that the House, in terms of section 231(2) of the Constitution, approve the said Agreement, which should be amended following entry into force.

The report was considered and adopted.

The meeting was adjourned.