1 See for example Esty, D “Good governance at the supranational scale: Globalising administrative law” (2006)115 Yale Law Journal 1490 at 1493CrossRefGoogle Scholar.

2 For a general discussion of the features of intergovernmentalism, see for example Blokker, N and Schermers, HInternational Institutional Law: Unity Within Diversity (1995, Martinus Nijhoff) at 40Google Scholar. See also Weiler, JThe Constitution of Europe: Do the New Clothes Have an Emperor? And Other Essays on European Integration (1999, Cambridge University Press) at 275Google Scholar.

3 See art 6 of the AU Constitutive Act (Constitutive Act), available at: <http://www.africa-union.org/root/au/aboutau/constitutive_act_en.htm> (last accessed 12 October 2011).

4 According to the AU audit report, the rate at which decisions emanating from the Commission are implemented is just over 10%; see generally Audit Report of the African Union (2007, African Union)Google Scholar.

5 While all the heads of the OAU/AU secretariat have to date been male, it is expected that gender equality will be taken into consideration when future chairpersons are appointed. This is discussed under “Eligibility requirements” below.

6 Available at: <http://www.africa-union.org/rule_prot/rules_Assembly.pdf> (last accessed 12 October 2011).

7 See Rule 42(2).

8 Rule 38(2).

9 See art 10 of the Statutes of the Commission, adopted at the first ordinary session of the Assembly, Durban, South Africa, 9–10 July 2002, available at: <http://www.au2002.gov.za/docs/summit_council/statutes.pdf> (last accessed 12 October 2011).

10 This point is explored further under “Institutional transformation of the AU” below.

11 Audit Report, above at note 4 at 44.

12 Ibid.

13 This is further discussed under “Hybridized functions” below.

14 Audit Report, above at note 4 at 57; see also D Lecoutre “The chair of the African Union: What prospect for institutionalization?” (2010, Institute of Security Studies paper 212) at 10.

15 Lecoutre, id at 10–11.

16 Ibid.

17 Id at 11.

18 The Rules outline the functions of the AU chairperson to: represent the Assembly in all areas of its competences (see Rule 4); “convene the sessions of the Assembly” (Rule 16); “open and close the sessions” (Rule 16); “submit to a vote matters under discussion and announce the results of the vote taken” (Rule 16); and “call to order any speaker whose statement deviates from the issue under discussion” (Rule 20).

19 Audit Report, above at note 4 at 44.

20 AU/Dec.233(XII).

21 Ibid.

22 These include: defence, peace and security; political affairs and external relations; international trade and co-operation; continental and regional integration; development, finance and economic planning; youth, culture and social development; education, science and technology; agriculture and water; environment and natural resources; continental justice and legal affairs; labour and migration; and health and population; see id at 3–6.

23 Ayangafac, C and Mpyisi, KThe Proposed AU Authority: Hybridisation, Balancing, Intergovermentalism and Supranationalism (2009, Institute of Security Studies situation report) at 4; see also id at 2Google Scholar.

24 Art 6(2) of the Constitutive Act states that the Assembly is “the supreme organ of the Union”.

25 Id, art 9.

26 These include foreign trade, energy, water resources, education, science and technology, immigration and social security; see id, art 13.

27 As Lecoutre notes, many see the Commission chairperson as “the agent of the Assembly of Heads of States and Government”; see Lecoutre “The chair of the AU”, above at note 14 at 10.

28 Art 23 of the Constitutive Act provides for the imposition of sanctions such as the denial of the transportation and communication links. Art 30 further provides for the suspension of governments that have come to power through unconstitutional means.

29 AU/Dec.233(XII).

30 For instance, Birikorang opines that the entrenchment of the AU's rule against unconstitutional change of government continues to be undermined by the insistence of certain influential African presidents on the non-application or removal of sanctions against violating states. See E Birikorang “Revisiting the trajectory of regime change in Africa: An overview” (paper presented at the African Human Security Initiative seminar, “Unconstitutional regime changes: The resurgence of coups in Africa”, 2009) at 5–6, available at: <http://www.iss.co.za/uploads/09SEP09BIRIKORANG.PDF> (last accessed 27 October 2009).

31 Anyagafac and Mpyisi The proposed AU Authority, above at note 23 at 4.

32 Audit Report, above at note 4 at 46.

33 See art 9(i) of the Constitutive Act.

34 See art 7(2) of the Statutes.

35 See <http://www.pan-africanparliament.org> (last accessed 10 October 2010).

36 For a detailed discussion of the PAP, see: G Hugo “The Pan-African Parliament: Is the glass half-full or half-empty?” (2008, Institute of Security Studies, occasional paper 168); Pan-African Parliament, Strategic Plan 2006–2010; G Musila “United States of Africa: Positioning the Pan-African Parliament and court in the political union debate” (2007, Institute of Security Studies, occasional paper 142); S Mpanyane “Transformation of the Pan-African Parliament: A path to a legislative body?” (2009, Institute of Security Studies, occasional paper 181); Pan-African Parliament and the Institute of Security Studies “Report of the Pan-African Parliament seminar on strengthening the capacity of the Pan-African Parliament to exercise effective oversight” (workshop, Gallagher Estate, Midrand, 18 October 2007) (on file with the author); Pan-African Parliament Report of the Committee on Rules on the Transformation of the Pan-African Parliament: PAP/C.9/CRPD/RPT/37/08; AU Study on an African Union Government: Towards the United States of Africa (2006, African Union)Google Scholar; and Pan-African Parliament The Pan African Parliament Contribution to the Grand Debate on the African Union Government: PAP/P.7/WP/52/07.

37 See for example Dashwood, A “States in the European Union” (1998) 23 European Law Review 201 at 205–09Google Scholar.

38 However, the process of electing the commissioners should be similar to that for the chairperson and his/her deputy.

39 The power to force the resignation of a commissioner should however be exercised in conjunction with the Assembly and the PAP.

40 There was much controversy surrounding the relationship between the Commission and NEPAD. This issue was finally resolved, and subsequently confirmed by the Assembly, in April 2008 at a review summit of five heads of state. It was decided that NEPAD would be integrated into the AU structure and processes. This includes granting legal personality to the NEPAD secretariat in South Africa. See Assembly/AU/Dec.205 (XI). The Assembly arrived at a similar conclusion in relation to the APRM; see Assembly/AU/Dec.198 (XI). In this regard, the NEPAD secretariat has been transformed into a technical body of the AU and is now known as the NEPAD Planning and Coordinating Agency.

41 See note 14 above.

42 Audit Report, above at note 4 at 58.