2. Therefore, the constitutions are major “barriers of trade”, as they constitute justice on such criteria of fundamental rights, which are not-merely-commercial - even though all ´rights´ of trade to remove any “barriers of trade” must be at the same time based on some constitutions. The globalization has reached a point where the major force in slowing down its neoliberal ´bicycle´ is its collision with the constitutional obligations of states to implement fundamental rights (to food, health, work, clean environment, social security etc.) even where these would restrict trade.

Constitutions might be thus a fortress of justice, which is obliged to serve equality of law and equal rights independently from commercial powers and interests. The treatment of constitutions as “barriers of trade” has seriously collided with the legal sovereignty of state-constitutions, and thus, if the globalization wants to get further expanded, it must seek now first commercialization of constitutional legal order of rights.

3. How constitutions and democracy survive in Africa better than in Europe, when being treated as barriers of trade ?

It is essential for constitutive acts -such as constitutions- to have the constitutive functions to set up the foundation of all legal order to authorize what are the fundamental rights, for guaranteeing of which the power of law exists as the competence to implement the fundamental rights.

This highest constitutive competence to constitute the power of law for guaranteeing the existence of the fundamental rights by their realization is the foundation of that power of law, which belongs to people in democracy as their power to elect the highest authorities, who initiate and enact legislation. But this highest constitutive competence of the fundamental rights and democracy would disappear from the Europe by the draft EU constitution, where this most basic constitutive competence is not conferred to the Union, but has been anyway taken away from the people and peoples in the EU :

a) In the draft EU constitution the realization of objectives, such as “respect for democracy” is totally “depending on the extent to which the relevant competences are conferred” (article I-3:5) and no competence is conferred especially for realizing democracy as the main structure of the power and governance, neither for realizing other fundamental, universally equal human rights.

b) Thus the EU would have only an impotent “aim” of mere “respect for democracy… and… human rights” only as “values” without any competence for realizing them as the realization of these fundamental rights is prohibited to add “any… power or task for the Union” and subordinated under the hierarchy and “the limits of the powers of the Union as conferred on it”. (articles I-3:1 and II-51)

c) The Union is enacted primarily powers of dominant exclusive competences of commercial interests for realization of objectives so that “free” movement and competition of “services, goods and capital… shall be guaranteed” under all EU´s competences even where this marginalizes or restricts the realization of the fundamental rights (articles I-3:5, I-3:2, I-4, I-12 and the preamble of the EU Charter of Fundamental Rights).

(In African Charter on Human and Peoples Rights, “freedoms of each individual shall be exercised with due regard to the rights of others,… morality and common interest” (article 27:2))

d) At the same time when the draft EU constitution confers no competence to the union for realizing fundamental (democratic, social etc.) rights, it also takes away all sovereign authority, which its peoples and national democracies have had for realizing their fundamental rights or their democratic powers to elect the authorities who initiate the legislation and its direction. As the “law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States”, the EU is not enacted to respect the sovereignty of the democracies of the European peoples (but only their abstract “national identities” or state functions as subordinated under the competences of the EU institutions; articles I-5a and I-5:1)

4. Where EU´s objective would be to promote democracy only as a “value” of “respect for… democracy” (draft EU Constitution articles I- 2 and I- 3), the Constitutive Act of the African Union (AU) constitutes democratic legal order much more concretely on the basis of fundamental rights as a structure of participation of people/peoples in the use of power and governance :

“The objectives of the Union shall be to… promote democratic principles and institutions, popular participation”, so that “the Union shall function in accordance with the… sovereign equality and… participation of the African peoples in the activities of the Union”, “democratic principles, human rights… and… promotion of social justice to ensure balanced economic development” (The Constitutive Act of the African Union, ä’11.7.2000, articles 3 and 4). The African Union has thus competence for ensuring with African countries the adoption of the “legislative or other measures to give effect to” human rights and freedoms (African Charter on Human and Peoples Rights, article 1).

In democracy the power to initiate all legislation and its direction belongs to the peoples and their votes can not be predetermined by any economic or commercial competences of such authorities - like EU commissioners - whom we can not vote even regarding what are the basic tasks in initiating the direction of legislation and our fundamental rights and who does not have even competence for realizing our fundamental rights.

“The reality and respect of peoples rights should necessarily guarantee human rights”. ”All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people” and “every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law”. “In no case shall a people be deprived of” these rights of self-determination. (African Charter on Human and Peoples Rights, preamble and articles 13:1 and 21:1).

In democratic constitutive acts the peoples must be given the power to vote those who initiate legislation and its direction so that they must have the competence to guarantee the fundamental rights and their implementation also regarding the use of the economic resources and to develop the realization of these rights by their legislative initiatives.

“The Union shall function in accordance with the… promotion of social justice to ensure balanced economic development” and “in order to ensure the full participation of African peoples in the development and economic integration of the continent, a Pan-African Parliament shall be established” (The Constitutive Act of the African Union, articles 4 and 17). This parliament shall also “promote the principles of human rights and democracy in Africa” and is aimed to get later “full legislative powers” and “members… elected by universal adult suffrage”. (“Protocol to the Treaty Establishing the African Economic Community relating to the Pan-African Parliament”, articles 2:3 and 3:1-2).

African countries has initiative powers to “submit proposals” to develop the legislation of the African Union (The Constitutive Act of the AU, article 32) and they have set up also a competence for a Human Rights Commission to contribute “to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples' rights and fundamental freedoms upon which African Governments may base their legislations”. (African Charter on Human and Peoples Rights, article 45:1).The EU commissioners instead do not have any tasks or even any competence to develop or implement laws for our fundamental rights when practising their monopoly to initiate all the commitments and direction of our EU-legislation (the fundamental rights do “not extend the field of application of Union law… or establish any new power or task for the Union” at all (II-51:2).).

So the initiative and direction of the legislation belongs in the EU to the acts of commissioners predetermined by commercial tasks beyond the reach of our votes, but in the African Union to its member governments, who are mainly responsible for their peoples through the elections.

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