BY OLU IBEKWE (oluchukwuibekwe@gmail.com)
The passage of the
Pan African Parliament’s budget for the 2020 financial year is one of the achievements
of the just concluded Second Ordinary Session of the Fifth Parliament of the
Pan African Parliament (PAP) which sat between May 6 and 17 in Midrand, South
Africa.
In presenting the
budget for consideration, the Chairperson of PAP’s Permanent Committee on
Monetary and Financial Affairs, Senator Mike Temple (eSwitini) raised three
issues which in my opinion, take our minds back to the vision of the founders
of the AU in the establishment of this continental parliament.
First, Hon. Temple
described as “belittling”, a situation where parliamentarians have to, in
essence, prostrate before the Permanent Representatives Committee (PRC) in
order to have their budget approved. Secondly, he raised alarm over a plan to
stop the payment of allowances of parliamentarians by the PRC and thirdly, he
noted that for two consecutive years, the budget of the AU has not been
submitted to PAP as required by the Protocol Establishing the Pan African
Parliament (PAP Protocol).
It would appear
from the above that although the Constitutive Act of the African Union placed
PAP as the third highest organ of the AU, in practice, the PRC is the de facto
third highest AU organ and appear to exercise oversight over all the other
organs with the exception of the Assembly and the Executive Council.
Presentation of the AU
Budget to PAP
The Protocol
establishing PAP gives it advisory and consultative powers to debate and
discuss the budget of the African Union and make recommendations thereon prior
to approval by the Assembly. See Article 11(2) of the PAP Protocol and Rule
4(1)(g) of the Rules of Procedure of the Pan African Parliament (PAP Rules).
Article 4(m) of the
AU Constitutive Act states that the AU shall function in accordance with
democratic principles, rule of law and good governance while Article 7 states
that “Membership of the Pan-African
Parliament shall not be compatible with the exercise of executive or judicial
functions in a Member State”. It is therefore clear that the founders of the AU had
in mind, a union based on the concept of separation of powers, due process and
rule of law because it is the absence of an independent and vibrant parliament
that makes a regime to be classified as authoritarian or dictatorial.
Fortunately for us, the founders of the AU decided to establish a democratic
institution.
The PAP Protocol
which went through ratifications before coming into force requires that the
budget of the AU be presented to PAP prior to submission to the Assembly for
approval. I do not see any difficulty in complying with this requirement as it
serves to enrich the budget process by ensuring parliamentary input.
Presentation of the PAP
Budget to the PRC
The
Pan African Parliament which is the third highest organ of the AU (Article 5)
was established to ensure the participation of the African peoples in the
development and economic integration of the continent. Article 17(2) of the Constitutive
Act states that its composition, powers, functions and organization shall be
defined in a Protocol relating thereto.
On
the other hand, the PRC is listed as the seventh organ of the AU and is
composed of the permanent representatives of the member-states to the AU. It is
charged with preparing the work of the Executive Council and acting on the
Executive Council’s instructions. See Article 21 of the Constitutive Act. The
Constitutive Act did not anywhere, give the PRC the power to receive and consider
the budget of PAP which is a superior AU organ as per Article 5.
Article
15(2) of the PAP Protocol states that PAP’s “budget shall be drawn up by the
parliament in accordance with the Financial
Rules and Regulations of the AU and
shall be approved by the Assembly until such a time as the Pan African
Parliament shall start to exercise legislative powers”.
It
is on record that members of the Pan African Parliament are elected from their
respective national parliaments and that in most African countries, foreign ministers
who constitute the Executive Council are either current members of their
national Parliament back home or have at some point been members of the
parliament. That is not the case with members of the PRC who are mostly career
ambassadors, under the supervision of the foreign ministry and had to go
through their home national parliament for confirmation. It is therefore absurd
for these same ambassadors that appeared before PAP parliamentarians in their
home parliaments to now come to the AU to supervise and oversight them. I
therefore totally agree that it is belittling for PAP parliamentarians to be
constrained to appear before the PRC for the consideration and approval of
their budget. It should be the other way!
And
if I may ask, the plenary of the Pan African Parliament and the PRC, which one
has more democratic legitimacy? The PAP Budget is prepared in conjunction with
the Secretariat and approved by the relevant Permanent Committee, the PAP
Bureau and finally the plenary. Article 15(2) of the PAP Protocol envisaged
that once passed by the PAP plenary, the budget shall thereafter be presented
to the Assembly for approval, and not to
the PRC. And to underscore the importance which the founders of the AU
placed on PAP, the Protocol provided that once granted legislative powers, PAP
budget process would end with approval by the plenary. Unfortunately, that
desire is not reflected in the revised protocol which is undergoing
ratification because Article 8(2)(b) of the revised protocol now say that PAP
shall debate and discuss its own budget and make recommendations to the
relevant policy organs which is a coded way of saying the PRC! This is a topic
for another day.
Fortunately,
as part of the AU Institutional Reforms, the Assembly decided that the rules of
procedure of the PRC which gave it omnibus powers should be amended in line
with the provisions of AU Constitutive Act and that the PRC should no longer
exercise oversight authority. It is however, worrisome that more than two years
later, this Assembly decision is yet to see the light of the day!
Payment of
allowances to PAP parliamentarians
Article
10 of the PAP Protocol states that “the Pan African Parliamentarians shall be
paid an allowance to meet expenses in the discharge of their duties”. This
means that the PAP Protocol envisaged the payment of allowances to the parliamentarians
contrary to the position of the PRC.
It
would be recalled that the 34th Ordinary Session of the Executive
Council in February 2019 decided to stop the payment of allowances to the
parliamentarians including members of the bureau which were not approved by the
“policy organs” which I have interpreted to mean the PRC. I have looked through
the definitions contained in both the AU Constitutive Act and the PAP Protocol
to get the definition of “policy organs” and I am still searching!
However,
Article 10 of the Revised Protocol which is yet to come into force, states that
parliamentarians including members of the bureau, shall be paid allowances by
their respective state parties. But this Revised Protocol has only been
ratified by 12 member states, which means that 16 more ratifications are
required for it to come into force. Why implement portions of a Protocol that
is yet to come to force when there is a subsisting provision to the contrary?
It
is conceivable that there may be concerns about the reasonableness of allowing
parliamentarians to determine their own allowances which is where the Executive
Council (not the PRC under any guise) may come in to ensure that such
allowances are within the limits set by the Financial Rules and Regulations of
the AU and also that the parliamentarians are not allowed to be judges in their
own case.
But
it is inconsistent with due process and the rule of law for the PRC, acting on
behalf of the Executive Council, to pick and choose portions of the Revised
Protocol to begin to implement especially when such a portion is inconsistent
with the current protocol which is in force. I therefore humbly submit that
paragraph 28(ii) of the Executive Council Decision Ex. CL/Dec. 1031 should be
revisited.
PAP
Protocol requires that membership of the parliament shall comprise of five (5)
members out of which at least, one must be a woman. The Protocol also requires
that the representation of each member state must reflect the diversity of political opinions in each National
Parliament”. This implies that each state delegation must include members
of the opposition party in parliament. And we all know how politics is played
in some African countries with regard to the status and benefits of members of
the opposition party in parliament.
It
could therefore reasonably be inferred that the founders of the African Union
in approving the PAP Protocol wanted to avoid a situation where
parliamentarians from the opposition parties are not discriminated against and
that they are similarly funded as those from the majority party in their
national parliament.
Until
such a time as the Revised Protocol comes into force, Article 10 which permits
the payment of allowances to parliamentarians should be given its ordinary
interpretation. Any ambiguity should, as required by Article 20 of the
Protocol, be resolved by either the Court of Justice or the Assembly which
shall decide by two-thirds majority.
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