Pan African Parliament’s 2020 Budget And Matters Arising

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 34^th 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.