The ambiguities of subsidiarity

At its 14 January 2022 meeting, the AU Peace and Security Council (PSC) endorsed the Economic Community of West African States (ECOWAS) communiqué imposing additional economic and financial sanctions against Mali. This endorsement – after the fact – came in spite of several PSC member states noting that ECOWAS’ decisions should not automatically be endorsed by the Council.

However, ECOWAS states’ viewpoints prevailed as it has become a PSC habit to endorse regional economic communities (REC) decisions on crisis management. States’ reservations reflect the ambiguities of subsidiarity and the contradictions of the AU legal framework on the relationship between Addis Ababa and regional economic communities.

An uneven legal framework

AU legal frameworks such as the protocol establishing the PSC indicate the AU’s responsibility for continental peace and coordinate the work of regional mechanisms. The protocol states that regional mechanisms are part of the AU’s ‘overall security architecture, whose primary responsibility is promoting peace, security and stability in Africa’. It further states that the AU Chairperson and PSC should harmonise and coordinate activities of regional peace, security and stability mechanisms to ensure their consistency with AU objectives and principles.

In 2007, a memorandum of understanding (MoU) on cooperation between the AU and regional mechanisms was adopted to supplement the protocol. The document reiterated the AU’s primary responsibility, but also called for ‘adherence to the principles of subsidiarity, complementarity and comparative advantage’.

An ambiguous concept

Subsidiarity, popularised by European Union (EU) community law, refers to a multilayered structure of various intervention levels. Typically, it means the upper level (e.g. the state) should perform only tasks that cannot be implemented at the lowest level (e.g. by local actors), implying the latter’s primacy.

Advocates of the state primacy and supranational project saw subsidiarity as strengthening their positions

In the EU, the concept was introduced in the Maastricht Treaty, adopted in 1992. But it remained ambiguous. Jacques Delors, former European Commission president, defined it as ‘decentralised organisation of responsibilities so as never to entrust to a larger unit what can be better achieved by a smaller one. Advocates of primacy of states and promoters of the supranational project saw subsidiarity as strengthening their positions.

The AU legal framework entertains this ambiguity as it recognises the primacy of both continental and regional levels in peace and security. This makes Africa’s multilayered security governance even more complex as it adds another layer of responsibility (the RECs) between national states and the AU.

The confusion is exacerbated by subsidiarity being neither defined in the PSC Protocol, nor in the MoU. The unique AU legal document including a definition of subsidiarity is the Charter on Maritime Safety and Security and Development in Africa, which was adopted on 15 October 2016.

It states that ‘subsidiarity refers to the principle of ensuring a degree of independence for a lower authority from a higher authority, or for a local authority from central government. It, therefore, implies the sharing of competence at different levels of authority’.

The issue with this definition is the gap with African institutional realities. It first assumes shared competencies between the AU and RECs that do not exist. Also, underlining the independence of lower authorities implies a hierarchical relationship between the AU and RECs. This has been more than nuanced by the 2007 MoU and the daily working of the Architecture of Peace and Security in Africa (APSA).

Subsidiarity is out of step with the AU’s multilayered governance of security matters

RECs were established on legal, political and technical processes that did not necessarily involve the AU. While the AU is the continental organisation, the relationship is horizontal and networked, rather than vertical. An overview of the treaties establishing RECs barely makes reference to the primacy of the PSC in peace and security.

Growing primacy of APSA regions

The dynamics between the AU and RECs have transformed in recent years. Subsidiarity has gradually been used by RECs to assert their primacy in the management of crises. This situation has somehow led the PSC to almost systematically endorse decisions of regional bodies.

Regional politics also prevent some crises from making it to the PSC agenda. A good illustration was the sidelining of the AU in the ongoing crisis in Mozambique. The deployment of the Southern African Development Community military mission was not endorsed by the PSC as it was not consulted beforehand.

While this empowerment of RECs is not an issue per se, some practicalities complicate the implementation of subsidiarity. One is the difficulty in identifying an acceptable threshold to escalate crisis management to the next level of responsibility. Most regional bodies are reluctant to enlist AU involvement or they reject it despite their lacklustre performance. The situation is hardly better between national and regional levels.

Nor does proximity necessarily mean effectiveness. Primacy of regional crisis management can be paralysed by strong divisions in the region. The East African Community’s mediation of the 2015 political crisis in Burundi rendered it a victim of this dynamic among its partner states. In cases such as that of the Economic Community of Central African States, the regional advantage is not clear of, for example, dealing with the Cameroonian Anglophone regions crisis.

Subsidiarity is not necessarily AU-relevant

The lack of clarity around subsidiarity has induced inconsistency in the implementation of APSA. In reality, subsidiarity is out of step with the AU’s multilayered governance of security matters. It can be said that the ongoing institutional reform reaches the same conclusion as it refers to the ‘division of labour between the AU and RECs’ rather than subsidiarity.

Despite sharing the name ‘union’ with its European counterpart, the AU is closer to the United Nations

The decontextualised use of ‘subsidiarity’ leads to misunderstanding about the AU as an international organisation. Despite its integration rhetoric and ambitions, the AU remains, legally and politically, an intergovernmental organisation for cooperation. The AU is far from a supranational organisation that issues binding regulations as is the EU.

Subsidiarity applies only when a community law emerges from supranational organisation binding decisions or there is common jurisdiction to settle disputes about the division of labour between levels of responsibility. This is hardly the case in the AU, where the protocol establishing the African Court of Justice and Human Rights has been ratified by eight of 55 member states.

Despite sharing the name union with its European model, the AU is closer to the United Nations than to the EU. Subsidiarity is more an aspiration and political discourse than a genuine policy. It often reflects immediate interests of competing organisations rather than being a clear-cut strategy of cooperation among them.

Given legal and political bases of current continental and regional bodies, cooperation rather than subsidiarity is the way to go for the next 20 years. Cooperation would enable mutual learning and trust. Relationships between the AU and RECs will become driven less by primacy and more by the need for effectiveness. This will take time and should not be subjected to the usual project timeframes. Only then will subsidiarity be achieved among the AU, RECs and national levels.

Image: © Peek Creative Collective / Alamy Stock Photo

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