By Olu Ibekwe (olu4paragon@yahoo.com)

Hon. Roger Nkodo Dang, PAP President

The transformation of the Organization of African Unity (OAU) to the African Union (AU) was born out of the realization that the OAU structure and machinery was not meeting the challenges facing the African continent at the beginning of the 21^st century.

As the late African statesman Dr. Julius Nyerere once observed, the OAU Charter spoke for the African people still under colonialism or racial domination, but as the countries emerged to nationhood, the Charter stood for the protection of their heads of state and served as a trade union which protected them even if they came to power through undemocratic means. In order words, the OAU became an institution of the African Heads of State, by the Heads of State and for the Heads of State.

A new continental legal order

To overcome those challenges, the Constitutive Act of the African Union was negotiated in a way that ensured that the Union functioned in accordance with certain principles which included the participation of African peoples and civil society organizations in the activities of the AU and respect for democratic principles, human rights, the rule of law and good governance.

The formation of the AU therefore marked the beginning of a new continental legal order because unlike the OAU, the AU was formed by a Constitutive Act which established a codified framework under which the AU is to conduct its business. It marked a departure from the seeming authoritarian political order and reflected a new thinking in African politics in the 21^st century.

President Paul Kagame, AU President

While the OAU had only four organs namely: the Assembly of heads of state; the Council of Ministers; the General Secretariat; and the Commission of Mediation, Conciliation and Arbitration, the AU on the other hand, has ten organs as listed in Article 5 of the Constitutive Act. These are: the Assembly; the Executive Council; the Pan African Parliament (PAP); the Court of Justice; the Commission; the Peace and Security Council; the Permanent Representatives Committee; the Specialized Technical Committees; the Economic, Social and Cultural Council; and the Financial Institutions.

Of the ten AU organs, four namely the Pan African Parliament, the Court of Justice, the Peace and Security Council and the Financial Institutions have additional legal instruments in the form of protocols establishing them.

The implication is that the Constitutive Act which established PAP also provided for a Protocol that would define the composition, powers, functions and organization of the parliament. That Protocol went through ratification before coming into effect thereby re-enforcing the determination of member states to promote democratic principles and popular participation, consolidate democratic institutions and culture and ensure good governance.

The emergence of the PRC as an omnibus organ

After the transformation of the OAU (with four organs) to the AU (with ten organs), it was easy to have established the Assembly, the Executive Council, and the PRC but it certainly took the ratification of the enabling protocol for PAP to be established, about four years later. By the time PAP came on board in 2004, the PRC had established its rules of procedure through which it appropriated to itself, powers far beyond what was contained in or contemplated by the Constitutive Act.

Olusegun Obasanjo,of Nigeria, a founding father

As stipulated by the Constitutive Act, the Assembly which is composed of the heads of state and government of member states meets at least once a year (Article 6). The Executive Council, made up of ministers of foreign affairs of member states, meets at least twice a year (Article 10) with its functions enumerated in Article 13. The PRC which is responsible for preparing the work of the Executive Council, meets monthly and is the only organ on ground at the AU headquarters. Because it meets just before the summit of the Assembly, the Executive Council does not have the time to meaningfully review what is submitted to it by the PRC. As a result, it usually relies on and adopts the work of the PRC and passes on same to the Assembly for approval. This was how the PRC was able to get the approval for its rules of procedure that enlarged its functions and powers, thereby acquiring omnibus powers to the point of appropriating to itself, oversight responsibilities that is traditionally performed by the parliament, in violation of the doctrine of separation of powers.

By the time PAP came on board, the PRC had acquired so much powers and influence that instead of gradually relinquishing those traditional parliamentary functions back to PAP, the PRC simply included PAP as one of the organs under its supervision and control. An executive organ having oversight over the parliament is absurd as it has resulted in the concentration power in the hands of the executive with the resultant emasculation of PAP. As per Article 21 of the Constitutive Act, the main responsibility of the PRC is to prepare the work of the Executive Council and to act on its instructions.

Acquiring Substantive powers through its Rules of Procedure

Thabo Mbeki of South Africa

When the PRC adopted its Rules of Procedure, it enlarged the powers granted to it by Article 21and even exceeded those granted to the Executive Council by Article 13. The PRC’s rules of procedure included such powers as the consideration of the financial report of the Commission; consideration of the report of the auditors; consideration and implementation of the budget of the Union; and the composition of the bureaus of the organs of the Union. The powers contained in Rules 4(f) to 4(k) of the Rules of Procedure of the PRC could not have been derived from the powers conferred on the PRC by Article 21 of the Constitutive Act neither could they be considered as ancillary to its duty of preparing the work of the Executive Council whose powers are contained in Article 13. It is only the Specialized Technical Committees that Article 14 placed under the supervision of the Executive Council.

There is no authority either in the Constitutive Act or any ratified Protocol that gave the PRC the power to enlarge its powers even to the point of overriding certain provisions of the Constitutive Act and the PAP Protocol. It would appear that the PRC has replaced Article 11(2) of the PAP Protocol which gave PAP the power to discuss the budget of the AU and make recommendations prior to approval by the Assembly with Rule 4(f) of PRC’s Rules of Procedure which gave the PRC the power to consider the budget of the AU.

Ordinarily, an organization’s rules of procedure are a set of rules, ethics and customs which governs the meetings and other operations of the organization and how that organization is administered, i.e. the manner that it exercises the authority granted by the enabling legislation. A rule of procedure cannot grant substantive powers beyond that granted by the law that established the organization. The PRC has through Rule 4 of its Rules of Procedure enlarged its powers to include such areas as the power to consider the budget of the AU; power to receive and consider the report of external auditors of the AU; the power to propose the composition of the bureau of the organs of the AU and many others not intended by the founders of the AU. Interestingly, Rule 4 which contains the Powers and Functions of the PRC begins with “The PRC shall inter alia”. And the word inter alia means among other things, implying that their powers are boundless! Is this consistent with the vision of the founders of the AU?

Establishment of the Pan African Parliament

By ratifying the PAP Protocol, member states of the AU gave their approval to constitute a parliament whose composition, functions, powers and organization were defined by that protocol. The PAP Protocol gave no supervisory or oversight powers to the PRC neither could such powers have been implied from the Constitutive Act.

Clearly, there are legal implications that are inherent in the ratification of the PAP Protocol. For example, Article 2(1) of the Act states that member states of the AU established PAP whose composition, functions, powers and organization are governed by that Protocol. This implies that PAP is not a creation of any of the AU organs and its powers were not acquired through its rules of procedure but by a substantive statute duly ratified by member states. Therefore, any attempt to interfere with PAP’s current functions, structure, organization and powers will require amendments to the PAP Protocol which will require ratification by the required number of member states.

Separation of powers

To underscore the importance of the envisaged role of PAP vis-à-vis the doctrine of separation of powers, the founders of the Union made it clear that membership of PAP shall not be compatible with the exercise of executive or judicial powers. The Assembly, Executive Council and the PRC are part of the executive for which the founders of the AU saw no need for the adoption and ratification of protocols establishing them.

But it is the need for an independent Pan African Parliament and Court of Justice that are outside the control and supervision of any other organ of the AU that informed the decision of the founding fathers to provide for the adoption and ratification of implementing protocols that would define the composition, powers, functions and organization of PAP (Article 17 of the Act) and the Court of Justice (Article 18). Sadly, the PRC appear to be dragging us back to the authoritarian days of the OAU.

Article 11(2) of the PAP Protocol gives PAP the power to discuss its budget and the budget of the AU and make recommendations prior to its approval by the Assembly. Also, Article15(2) gives PAP the power to draw up its budget in accordance with AU Financial Rules and Regulations for approval by the Assembly. The Constitutive Act did not give this power to the PRC because as we all know, the power over budget and appropriation has always resided in the parliament. It is absurd for the PRC to be exercising oversight over PAP budget and staff matters even to the point of recommending the suspension of PAP’s 2019 budget until the PRC is satisfied with the audit. This is clearly inconsistent with the vision of the founders of the AU in establishing a parliament whose powers, functions and organization were defined in a protocol establishing it and not subject to the whims and caprices of any other organ of the AU.

Another section of the PAP Protocol which has been consistently breached by the PRC is Article 12(5) which stipulates that the bureau of the parliament shall be responsible for the management and administration of the affairs and facilities of PAP and its organs. See also Rule 4(f) of the Rules of Procedure of the Pan African Parliament. It has become a notorious fact that the PRC has in the last fourteen years, consistently dabbled into the administration of PAP, the most recent of which was the recent order to the PAP President not to hire or fire any staff without its approval during the period of the last audit. This is contrary to the vision of the founders in providing for the said Article 12(5).

As a further example of how ubiquitous the PRC has become, members of the AU Reform Committee had in a meeting with the former South African President Jacob Zuma earlier in 2018, blamed the tension between Rwanda and South Africa on the PRC which was accused of wanting to be in control of the AU reform process. A member of the reform team complained that the PRC members were feeling that the work should have been done by them and accused them (PRC) of trying to sabotage it. In order words, the PRC has become an ubiquitous AU organ.

Ratification of PAP’s Revised Protocol

The current PAP Protocol was ratified within five years after adoption by the heads of state. However, the revised protocol which was adopted on June 27, 2014, has only been ratified by ten member states, four years later. This is because the PRC has been using every trick in the book to sabotage the ratification process. It has done everything to portray PAP as incapable of managing its affairs without supervision and so, not ready to be given legislative powers. By always raising spurious audit queries and presenting negative reports about PAP at summits of the heads of state and government, the ratification of the revised protocol is no longer put on the front burner. The 31^st summit saw the PRC presenting a report that questioned PAP’s finances; questioned the conduct of the 2018 bureau elections; and questioned the firing of then acting clerk all of which resulted in the suspension of PAP’s 2019 budget and ordering an independent audit. The president of PAP was also directed not to hire or fire any staff pending the conclusion of the audit in clear violation of Article 12(5) of the PAP Protocol.

In line with vision of the founders of the AU and consistent with global best practices, the report of the AU ordered audit of the PAP should first be presented to the PAP for public hearing by its Committee on Audit and Public Accounts, whose recommendations would then be tabled before the PAP plenary (also open to the public). PAP’s Protocol contain adequate provision to address any shortcomings arising from the audit and it is the report and recommendations of the PAP plenary that would then be submitted to the Assembly for consideration, and not the report of the PRC (emphasis added).. The PRC does not have any statutory role to play in this matter as the Constitutive Act did not give it the power to receive and consider audit report of PAP or any other organ. And unlike the proceedings of PAP which are open to the public, the PRC sessions are closed to the public. See Rule 9 of PRC’s rules of procedure.

Conclusion

In line with the vision of the founders of the AU as clearly expressed in the Constitutive Act, the composition, functions, powers and organization of PAP are clearly defined in the Protocol establishing the parliament. The Executive Council should accordingly initiate a review of the PRC’s rules of procedure with a view to expunging those powers which have been hijacked from PAP as well as limit PRC’s role to preparing the work of the Executive Council or matters ancillary thereto and acting as a link between the AU headquarters and the member states.

Secondly, the doctrine of separation of powers teaches that the organs of government namely, the legislature, executive and judiciary should be independent of each other so as promote checks and balances. It is only in dictatorships that you will have the executive, dictating how the parliament should be run and as has been pointed out, we are no longer in the days of the OAU.

Again, the PRC should appreciate the fact that one of the objectives for the establishment of PAP as stated in Article 3(1) of the Protocol, is to facilitate the effective implementation of the policies and objectives of the African Union. The PAP Protocol therefore envisages direct communication between PAP and the Assembly instead of the erroneous belief by the PRC that all reports for consideration by the Assembly must first pass through it. The PRC should not attempt to circumvent the legal limitation placed by the PAP Protocol by hiding under the guise of preparing the work of the Executive Council. An inferior organ should not be allowed to continue to micro-manage, supervise or have oversight over a superior organ. Article 5 of the Constitutive Act listed PAP as the third organ of the AU while the PRC is listed as the seventh organ.

The AU should adopt international best practices in the conduct of its business, in line with the provisions of the Constitutive Act that established the Union. In this regard, it should be pointed out that the design of the AU organs is similar to that of the European Union (EU) with comparable institutions. For example, the Committee of Permanent Representatives (CPR) of the EU is similar to the PRC of the AU and prepares the agenda for the Ministerial Council of the European Union meetings and also takes procedural decisions (emphasis added). It exercises no substantive powers but serves and coordinates the work of some 250 committees and working groups made up of civil servants from member states who work on issues at the technical level to be discussed later by the Council (emphasis added). The CPR subordinates itself and limits its jurisdiction to serving the Ministerial Council as opposed to the PRC which has hijacked substantive powers and sees itself as an omnibus organ with jurisdiction over all the other organs of the AU with the exception of the Executive Council and the Assembly. I therefore submit that this exercise of omnibus powers is inconsistent with vision of the founders of the AU in establishing the PRC and encroaches on the oversight powers of PAP.

Some commentators have posited that PAP is a mere talk shop and a toothless bulldog and I beg to disagree because it is the PRC that has made it to be so. PAP’s Protocol makes it clear that PAP has consultative and advisory powers [Article 2(3)(i)]; that it has the authority to facilitate the effective implementation of the policies and objectives of the AU (Article 3(1); that it has the power to discuss the budget of the AU and make recommendations prior to approval by the Assembly (Article 11(2); that it has the power to draw up its own budget in accordance with AU Financial Rules and Regulations (Article 15(2); is responsible for the management and administration of the affairs and facilities of PAP and its organs (Article 12(5);and that PAP has the power to request officials of the other organs of the AU to attend its sessions, produce documents or assist in the discharge of its duties (Article 11(5). How then can PAP with the above powers be described as a mere talk shop?